The UK government has blocked Scotland's Gender Recognition Reform Bill by enforcing section 35 of the Scotland Act 1998 for the first time in history. The decision has been described as using “the nuclear option” by political commentators, and has sparked outrage from Scotland's First Minister Nicola Sturgeon.
UK ministers gathered on 16 January to review the bill, which was first passed in Holyrood on 22 December by 86 votes in favour and 39 against – and was described as “a victory for trans and all human rights in Scotland” by the LGBTQ+ charity Stonewall.
Scottish Secretary Alister Jack announced the decision, saying in a statement: “After thorough and careful consideration of all the relevant advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation.
“Transgender people who are going through the process to change their legal sex deserve our respect, support and understanding. My decision today is about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters. I have not taken this decision lightly. The Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales. I have concluded, therefore, that this is the necessary and correct course of action.”
Nicola Sturgeon has since confirmed that Scotland will respond by mounting a legal challenge against the decision. She tweeted: “This is a full-frontal attack on our democratically elected Scottish Parliament and it's ability to make it's own decisions on devolved matters. @scotgov will defend the legislation & stand up for Scotland’s Parliament. If this Westminster veto succeeds, it will be first of many.”
The proposed bill looks to improve the process for accessing the Gender Recognition Act for transgender people. However, critics argue it could have consequences for cisgender women.
Here, we break down everything you need to know about Scotland's Gender Recognition Reform Bill:
What is Scotland's Gender Recognition Act?
To understand the Gender Recognition Reform bill, we first need to understand the Gender Recognition Act 2004.
The Gender Recognition Act 2004 (GRA 2004) results from a successful legal challenge by a transgender woman at the European Court of Human Rights. Ruling under two articles, the right to marry and the right to privacy, the UK was compelled to implement a form of legal recognition for transgender people.
The UK implemented the GRA 2004, which was, for its time, very progressive. It does not require transgender people to have undergone any medical or surgical transition to obtain a Gender Recognition Certificate (GRC). Many bills from other countries did require this at the time – most of which now operate on a self-ID basis, including Germany, Belgium and Switzerland.
A GRC allows the holder to have the sex marker of their birth certificate changed. A GRC is not required to change documents such as passports, driving licenses or details with other businesses and organisations. It has the effect of changing your legally recognised sex for “all purposes.”
The process for accessing the GRA 2004 originally included a two-year wait, a fee and the requirement to present evidence of transition to a Gender Recognition Panel. This evidence must include a diagnosis of gender dysphoria and be signed off by at least two gender specialists. Other evidence may include two years of documents proving a consistent use of a new name, for example.
Scotland’s Gender Recognition Reform bill aims to change this. Proposals involve allowing 16–17-year-olds access, removing the Gender Recognition Panel, and the requirement for a diagnosis of gender dysphoria. This is often referred to as self-ID, though it is also described as the “de-medicalisation” of the process.
Instead, those in favour of reform are suggesting that those wishing to change the sex marker of their birth certificate should be able to make a statutory declaration to do so. This would be legally binding, with criminal penalties for making a false declaration.
I'm done seeking external validation for my womanhood.
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Why has Scotland's Gender Recognition Act been considered controversial?
Over 150 amendments were debated across the three days of Scotland’s Gender Recognition Reform bill being heard at Holyrood. The SNP and Scottish Greens lead those in favour of the bill, and Scottish Conservatives lead those opposed.
Amendments fundamentally sought to alter the bill, including attempts to maintain the process' medicalisation and opposing access to 16–18 year-olds. Others sought to include amendments that they argue would “safeguard” cisgender women from abuses they believe would arise from the passing of this bill.
They argued that 16–18 year-olds are too young to drink wine or buy tobacco and, therefore, should not be able to change their birth certificates. However, 16–17-year-olds can get married in Scotland, implying they ought to be entitled to access the GRA.
We also heard multiple arguments about the use of single-sex spaces and services. Those opposed to the bill argued that it could negatively impact these services, sometimes forcing cisgender women to self-exclude from them, using the rhetoric that any man will be able to get a GRC and use women’s services, per the likes of Joanna Cherry KC, a Scottish National Party MP.
These concerns were especially pressed after a recent legal ruling in Scotland shored up the language of the GRA, i.e. “it changes legal sex for all purposes”. However, as repeatedly stressed by Shona Robinson and Maggie Chapman; the bill does not seek to alter the function of the GRA as it stands.
A lot of criticism of the bill, both within the chamber and on social media, has focused on the idea of predatory men being able to abuse loopholes to target and harm cisgender women. However, it is unclear how exactly this will be the case. The GRA has stood for almost 20 years and has never had the effect of granting access to spaces.
In fact, during the UK’s own Gender Recognition Act reform process, this was confirmed in the House of Lords by Baroness Berridge. Spaces already operate on a self-ID basis – as you do not need to produce a birth certificate to use them – and the GRA or reform to it have no impact on that fact.
Other criticisms argued that these proposals will erode rights as enshrined in the Equality Act 2010, specifically the single-sex exemptions mentioned there. Though again, those in favour stressed that those exemptions remain intact. Services such as crisis centres, as mentioned in the guidance, are able to exclude transgender women if it is a “proportionate means of achieving a legitimate aim”.
This move is all about supporting the LGBTQIA+ community.
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