The Tory case for blocking Scottish gender recognition

The Tories have published their Statement of Reasons for blocking the Gender Recognition Reform (Scotland) Bill. It is very thin. I hope it is not sufficient.

For Alister Jack, the Secretary of State for Scotland, to be able to block the Bill under s35 of the Scotland Act he needs to show that the Bill makes modifications of the law as it applies to Equal Opportunities, and that it would have an adverse effect on the operation of Equal Opportunities law. He fails on the first heading. His arguments all relate to the operation of the Equality Act, not its content.

The Bill specifically states that nothing in it modifies the Equality Act, and none of Jack’s arguments state that it modifies Equalities law, only that more trans people will have GRCs, and that this may worry cis people who object to trans inclusion. That is, Jack’s statement fails to make the case he needs to make.

The Census of England and Wales showed that there are 262,000 trans people here, 0.4% of the population. Fewer than 10,000 have a GRC. That shows the comprehensive failure of the Gender Recognition Act. Theresa May promised to reform it, and the Women and Equalities Committee recommended reform, but the Government have refused to take the necessary action the Scottish government have taken.

Jack argues that the GRR Bill affects the operation of the Equality Act. More people will be recognised as trans. But trans have a human right of recognition: it’s the right to respect for private and family life. That means the Equality Act will operate as it was intended to, protecting trans people. There is no “adverse” effect, but an ameliorative one.

You can download the text of Jack’s argument.

It starts with a summary of the GRR Bill. People can apply if they are “ordinarily resident” in Scotland, that is, if they live there. Nobody living in England could apply unless they moved to Scotland. Now, you do not need a UK birth certificate to apply for a UK GRC. See GRA s10(1). However, people with a Scottish GRC could move to England after getting it.

It claims there is a risk of people fraudulently claiming. “These amendments remove any requirement for third party verification or evidence.” Well, yes. People should be trusted to tell the truth unless there is reason to disbelieve them. In any event, they should not need a specialist psychiatrist on a Government list to certify their truthfulness. Trans is not a mental illness.

We should never restrict rights because someone might fraudulently abuse them. Instead, we should prosecute abuse. But even if there are bad actors fraudulently abusing the system, that does not change the law, so does not meet s35 of the Scotland Act. It does not entitle Jack to block the Bill.

Jack claims that people will have a different gender in Scotland from the gender they have in England. This is theoretically possible: if any immigrant has gender recognition in their home country, Scotland will recognise it automatically, but England requires them to apply for a UK GRC. Possibly Jack is right that it is undesirable for someone to change legal sex when they cross the border, but that is not the test in the Scotland Act. Jack can’t just block something he considers undesirable. And it is only immigrants who have gender recognition abroad: the Scottish Registrar General would issue a GRC to those ordinarily resident in Scotland who did not. It would be a GRC as recognised by English law.

Jack states that there will be problems for government computer systems. We should make systems to support people, as the SNP said. The answer is to reform GR in England.

Jack claims there will be adverse effects on sex-segregated services. He says people might feel unsafe in women’s spaces, so not use them. That is solved by education. Women’s spaces are more safe where there is Trans inclusion.

Jack says women’s single-sex associations will be required to accept more trans women, and that might put cis women off. It’s prejudice. Yes, some people are prejudiced. Equality law and human rights law should prevent that adversely affecting vulnerable minorities, such as trans people, not support and entrench prejudice. If a club ceases operating because of the perceived risks of admitting trans people (para 36) that cannot be blamed on trans people, or on Holyrood.

Jack claims the Bill affects the Public Sector Equality Duty (PSED). Public authorities have a duty to advance equality between people with a particular protected characteristic and people who do not share it. But the protected characteristic is “gender reassignment”- all trans people who have decided they will transition at some point, not just those with a GRC. If there were a situation where cis people were disadvantaged, compared to trans people, there would be a duty to redress that. But the thought is ridiculous.

The Equality Act is badly drafted. Its intention, as shown in the EHRC Code of Practice, is to allow all trans women to use women’s services from the moment they decide to transition, if they are expressing themselves female. But Schedule 3 paras 26 and 27 refer to “single-sex” and “separate sex” services, and if trans women’s sex is male until they get a GRC on the literal interpretation of those words they could be excluded. That is the interpretation of para 39 of the Policy statement. I hope the Supreme Court will correct that interpretation when the dispute reaches it. I can’t be certain they will.

Then, para 49 says if more people have a GRC, they will have to be excluded under Schedule 3 para 28, which says exclusion is not gender reassignment discrimination if it is a “proportionate means of achieving a legitimate aim”. Services would have to draft a PMOALA rather than simply excluding trans women as “men”. This is ridiculous. It looks at the law from the point of view of the oppressor, not the victim, the excluder rather than the excluded. If more people have a legal right, that is to be celebrated. However, the policy statement impliedly admits that PMOALAs are rare, in actual practice. There is no good reason to exclude trans women.

Girls schools might have to admit a 16 year old trans girl. Para 55 says that parents and pupils want to avoid sexual harassment. This is the most disgusting fearmongering prejudice against trans girls, in a government document.

The policy statement gives no grounds for blocking Royal assent. When it gets to the Supreme Court, it should be torn to shreds.

The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 came into force on 18 January 2023, just within the time limit. The explanatory notes say the policy statement contains a fuller narrative of the reasons. I don’t think the Order contradicts the policy statement. There is also an Explanatory Memorandum and Impact Assessment. I am not going to analyse further, but on a cursory glance I see the Impact Assessment, p8, admits that anyone considering applying for a GRC under the GRR provisions “would likely have this protected characteristic” (gender reassignment). That appears to be an admission that fraudulent applications are unlikely. Now, cleverer lawyers than I will analyse in depth, before the Court of Session hears a case.