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Legal Gender Recognition in Scotland: Room to Challenge Westminster?

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Lui Asquith

Associate Solicitor

Public and Administrative Law at Russell-Cooke LLP

Gender recognition is a devolved matter. This means that the Scottish Parliament can legislate in this area unless the UK Government reasonably considers that a new piece of Scottish legislation would have an adverse effect on the operation of law as it applies to reserved matters, (found in Schedule 5 of the Scotland Act 1998). In these circumstances, the UK Government can veto legislation that has been passed.

This happened (for the first time, ever) on 17 January 2023, when the UK Secretary of State for Scotland, Alister Jack, made an order under s.35, preventing the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill 2021 (the Bill) from proceeding to Royal Assent. This was due to concerns that it “…would have an adverse impact on the operation of Great Britain-wide equalities legislation.” The Bill, passed (by 86 votes to 39) in December 2022, made Scotland the first nation in the UK to back a self-identification framework for changing legal gender, in a move in line with many other countries around the world, such as Ireland, Norway and most recently, Spain.

As identified by the Law Society of Scotland, considering the lawfulness of Westminster’s decision to veto is “unchartered territory”. It is curious: why has Westminster chosen now, on this political issue after 25 years of workarounds? As SNP MP Joanna Cherry stated, “It is of the essence of devolution that the devolved Parliament is subservient to the UK Parliament, that’s why we, as nationalists, want independence…”. Cherry makes an important point, areas of devolution are qualified. However, she perhaps offers more power to Westminster than you’d expect from an SNP MP. Scotland’s power to legislate in specific areas may be susceptible to veto, but Westminster’s decision to veto can be subject to Holyrood (or anyone with ‘standing’) bringing a judicial review (JR).

It would be a shock were a JR not brought. Scotland rolling over when Westminster says “no” seems unlikely on matters of such constitutional importance, especially so soon after the Supreme Court’s decision on a further independence referendum. If no challenge were pursued by Scotland, it could be conceding a great deal to Westminster. Of course, it depends on whether the UK Government’s reasoning is sound. If the Bill does indeed have an adverse impact on reserved matters, it can be stopped from progressing to Royal Assent. However, it is not clear cut and whether it does or not is a novel and important question. It is certainly a tricky place to be should one be a Scottish nationalist holding gender critical beliefs, because although the question of Scottish devolved powers is the central legal issue, it is now inextricably linked with the issue of gender recognition and ‘self-ID’.

The UK Government’s reasoning for its veto can be found in the policy rationale published by the office of the Secretary of State for Scotland and Government Equalities Office (the Rationale). The Rationale gives rise to far more questions than it does answers and looks more like an invitation to litigate than offering watertight legal reasoning. It is with sorrow that we see the Rationale deal in speculation rather than data and authority, which contributes to a relentless fearmongering of trans people, particularly trans women. It’s hard to believe this was the intention of the Equality Act 2010 (EA), given it was a population of people it explicitly attempts to protect from prejudicial and discriminatory conduct. The practical impact of decisions around devolution matters can often result in tricky policy questions that have to be worked through, such as in this case, the practical implications of a system that covers those who are 16-17 years old. But questions about policy implementation, however challenging, do not automatically give rise to a veto.

There are elements of the Rationale that are a cause for concern and expose its weakness. First, the Rationale omits proper consideration of the Government’s equality and human rights obligations, including its international duties. Second, it focuses instead on an unevidenced fear of misuse of a system. There is no data to support this proposition. More specifically, the relationship between the Gender Recognition Act 2004 (GRA) and the EA has been (in the author’s opinion, erroneously) represented as significantly interlinked – a hangover from the GRA consultation for England and Wales 2018. Whether a trans person has a Gender Recognition Certificate (GRC) or not, they are still protected under the category of ‘sex’ and ‘gender reassignment’. What’s more, the trans person’s status will not impact (or ‘undermine’) a cisgender woman from being protected under the category of ‘sex’. This was the case before the Bill, and it will continue to be the case after it. The purpose of the veto power is not to re-interpret (as though it is legal fact) primary legislation through the back door. It’s difficult to see this as anything but a shadow debate. The legislation should help provide clarity, not contribute to a frustrating conflation.

The Rationale also suggests (at para 49) that an increase in a ‘case-by-case’ approach is a bad thing, as though the homogenising of marginalised populations is a good thing and in line with the EAs objective. It is difficult to see how the principle of considering each person and circumstance on its own facts is legally flawed. In a similar vein, it proceeds to suggest that the EA’s starting point is exclusion, rather than inclusion, when considering single-sex spaces exceptions relating to those protected by section 7 of the GRA. The EA exceptions are not invitations to discriminate; rather, they are a set of defences to discriminatory conduct. A discriminatory act remains a discriminatory act, but it can be objectively justified and therefore, lawful. The Rationale does not capture this legal nature.

The Rationale perhaps gives the reader a snapshot into the UK Government’s strategy on gender recognition and/or on Scotland’s devolution more broadly. What comes to light upon initial review. However, is that the decision seems to be a political one, not a legal one. Of course, should it get there, the Courts would deal only with the law.

The outcome of this situation is currently unknown. Either way, this is a major constitutional milestone for Scotland, which risks being overshadowed by the loud and polarising debate around gender recognition. Perhaps the reason for the Government’s veto lies therein-LGBT+ issues have infamously been used as a scapegoat for bigger political goals throughout history.

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