Constitutional showdown looms over Scotland’s transgender bill

Good morning. There is a looming showdown between the British and Scottish governments over reform of the Gender Recognition Act. The Scottish parliament last month passed the bill that seeks to make it easier for people to legally change their gender. There is a lot to say about the political and policy implications of this, and I imagine the row will run and run.

Today’s note is on the legal arguments, for which I am grateful for a number of Inside Politics readers in the legal world for their assistance. All the remaining mistakes are mine alone. Email your feedback and anything I’ve missed at the usual address.

I fought the law . . . 

Rishi Sunak will deploy section 35 of the Scotland Act 1998, enabling it to block legislation passed by the Scottish parliament from receiving royal assent and becoming law, George Parker reports. This power has not been used before.

Section 35 allows the British government to block Scottish parliamentary legislation becoming law for two reasons (the relevant clause for our purposes is in bold):

(a) which the secretary of state has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or

(b) which make modifications of the law as it applies to reserved matters and which the secretary of state has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,

In this case, it is the operation of equalities law — which remains a reserved competence of the UK government — that, according to three people familiar with discussions in Downing Street, forms the legal basis of Sunak’s use of section 35. A final decision is expected on Wednesday.

The Scottish government, meanwhile, insists that its gender recognition reform (GRR) bill does not conflict with UK-wide equalities law. Who’s right? The short answer to that is “the courts will decide”, but here is my best understanding of the questions and arguments on either side.

. . . the law won?

The gender recognition reform (GRR) bill makes a number of changes to the operation of the 2004 Gender Recognition Act, which covers the process of changing your legal gender across the UK. As it stands in the UK, if you want to change your legal gender, you must meet the following requirements:

• you’re aged 18 or over

• you’ve been diagnosed with gender dysphoria in the UK

• you’ve been living as the gender you wish to be known for at least 2 years

• you intend to live in this gender for the rest of your life

If the GRR bill passes into law, in Scotland, you will instead be able to change your legal gender if:

• you’re aged 16 or 17 and have lived in the gender you wish to be known for at least six months

• you’re aged at least 18 and have lived in the gender you wish to be known for at least three months

• you intend to live in this gender for the rest of your life

So the reform would let people in Scotland obtain a gender recognition certificate (GRC) — the document that legally recognises a person’s gender — without a medical diagnosis.

Now, that need not impinge upon UK equalities law, for several reasons. The 2010 Equality Act sets out the following nine “protected characteristics” under which it is illegal to discriminate against someone:

Taken together, the text of the 2004 Gender Recognition Act and the 2010 Equality Act are ambiguous on whether or not someone who legally changes their gender has legally changed the grounds on which it is illegal to discriminate against them. Lawyers can and have disagreed about this.

And for obvious reasons, you do not need to have completed the gender reassignment process to be protected under UK equalities law. If one of my employees tells me they are trans, and are planning to legally change their gender, and I fire them because of it, that act is no more lawful than it would have been had they told me after they received their GRC.

So you could, in theory, make sweeping changes to what the administrative hurdles are to changing your legal gender without changing the operation of UK equalities law. No matter how quickly or slowly the process of changing your legal gender goes, your rights receive the same protection and consideration both before and after you receive your GRC. Altering the process of changing your legal gender need not have a meaningful impact on UK equalities law if — and this is the crucial “if” — your legal rights remain unchanged.

Changing how you are identified by HMRC, on your birth certificate and your death certificate (the practical effect of changing your legal gender) are changes that have emotional significance, but they do not create new obligations under equalities law, anymore than changing how HMRC refer to you from “Miss” to “Ms” does.

There are also some specific exemptions carved into the Equality Act that are worth noting. One specifically covers domestic violence shelters and refuges:

A provider can deliver separate services for men and women where providing a combined service would not be as effective.

A provider can deliver separate services for men and women in different ways or to a different extent where providing a combined service would not be as effective and it would not be reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex.

While there is a broader opt-out for charities in general, provided their discrimination meets either of the following conditions:

(a) a proportionate means of achieving a legitimate aim, or

(b) for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

So, again, there is a lot of leeway to alter the process of changing your legal gender that would not impact the workings of the Equality Act.

But there are two separate questions. The first is “is it theoretically possible to write legislation a lot like Scotland’s GRR bill that doesn’t cut across UK equalities law?” The answer to that is “yes”. The second question is “does Scotland’s GRR bill successfully do this?” to which the answer is “maybe”.

One important change is that the Court of Session’s Outer House ruled in December that the 2004 Act does change your legal sex for all purposes other than the specific exemptions contained in the Equality Act, something that had previously been up in the air.

That matters because there is no specific opt-out in the Equality Act for schooling. Although there are no single-sex schools in Scotland’s state sector and just a handful in the private sector, it is not clear that the Equality Act’s exemptions for charitable work would apply to a single-sex private school. As such, the legal rights and obligations of private schools in Scotland may operate differently than they do today under equalities law if the GRR bill receives royal assent.

This is why it is not particularly meaningful that the GRR bill includes the following line:

For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.

It’s not the Equality Act that is reserved to Westminster. It is equalities law as a whole. You can’t simply say “well, we’ll defer to the Equality Act” if your legislation covers areas where the Equality Act is silent. Areas where the Equality Act provides no direct guidance, such as in single-sex schools, will ultimately have to be tested in the courts. “Do we have to go to court to settle this question?” is, I would say, a pretty big change to the operation of equalities law, in creating new areas of ambiguity.

Now, the Court of Session’s Outer House is not the final word: either the Inner House or the UK Supreme Court could ultimately look at that judgment, declare that it is wrong, and that sex and gender are separate protected characteristics no matter your legal gender. But unless or until that happens, the operation of the GRR bill remains sufficiently ambiguous that the UK government does, at the very least, have a good legal argument that the bill intrudes on reserved matters.

Whether it has a good political argument, either on the constitutional question and their battle with the SNP, is a different question. The likelihood of whether the GRR regime is preferable to the existing rules for changing your gender is another.

Now try this

I watched Arsenal beat Tottenham 2-0 to go eight points clear at the top of the league yesterday. So when I say the new film Tár, starring Cate Blanchett as a composer who faces a professional and personal crisis, was the best thing I saw this week, I want to make it clear that this is very, very high praise.

As Raphael Abraham notes in his review, it is early in the year to talk about the Oscars, but Blanchett will take some beating and this film will take some beating as one of the best of the year.

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