Sue Pascoe writes for Chamber on the Gender Recognition Reform Bill and the implication on the Union.
Just before Christmas arguably the longest and most scrutinised Bill in the history of the Scottish Parliament, the Gender Recognition Reform Bill (GRR), passed 88 votes for and 33 votes against. This Bill, if it gains Royal Ascent, will mean that the criteria for gaining a gender recognition certificate (GRC) in Scotland by a transgender person who changes their gender from male to female or vice versa will be able to do so based on the principle of self-determination waiting a short period and signing a statutory declaration that they intend to live in their acquired gender for the rest of their lives.
I support this Bill and would not wish to see it overturned by the actions of our Westminster government. This article explains why.
I wish all transgender people and their gender identities to be respected. I do not believe doing this gives rise to a general conflict of rights with women and girls who’s rights must also be respected.
It is worth repeating government policy articulated on 9 December 2022 in the document “Human Rights & Democracy – The 2021 Foreign, Commonwealth & Development Office Report” which said “The UK is fully committed to promoting and protecting the rights and dignity of Lesbian, Gay, Bisexual and Transgender (LGBT+) people. The UK condemns any discrimination on the grounds of sexual orientation or gender identity.” I would like this statement to be honoured.
I also wish to highlight that the Judicial Review NIQB 48 heard in the High Court in Northern Ireland regarding application of the UK wide Gender Recognition Act 2004 delivered in May 2021 concluded that “Even taking into account Parliament’s discretionary area of judgment and the legitimate aims which the requirement for medical input pursues, the requirement to provide a specific diagnosis which is defined as a ‘disorder’ fails to strike a fair balance between the interests of the applicant and those of the community generally.”
The GRR does correct for this deficiency in the GRA which has not yet been amended since the Judicial Review findings. Many overseas countries have removed this requirement from their gender recognition processes already.
Seeing the Bill passed
I sat in the gallery of the Scottish Parliament hearing my name being quoted by Jamie Greene, Conservative MSP, as he said he was voting for GRR under a free vote because he wanted to be able to look me and other trans people in the eye knowing he had stood up, like Theresa May, our former Prime Minister, to be on the right side of history. Theresa May has subsequently said she is disappointed the gender recognition changes passed in Scotland were not being considered for England and Wales.
He then read out this quote of mine to applause from MSP’s across the chamber:
“As a Conservative, I believe in fundamental human freedoms of liberty and freedom of expression, of self-determination, of bodily autonomy, of gender equality for all people and that each and every one of us is deserving of human rights that lift each of us up.”
The Bill was included as part of the SNP manifesto for government at the 2021 Scottish Parliament election and included in the Bute House Agreement after the 2021 Scottish Parliament election, where the SNP and the Scottish Greens formed a power-sharing coalition.
The large majority and the manifesto commitments mean any unjustified challenge from Westminster to the Bill becoming law would be seen by many in Scotland, irrespective of their view on gender recognition, as an affront to Scottish democracy and the devolution settlement.
Even more so given that the Scottish Human Rights Commission recommended gender recognition to be based on self-identification inline with international best practice and it is seen that the Bill is placing Scotland in compliance with Council of Europe Human Rights body recommendations, UN obligations and recommendations plus indeed the recommendations of the Women’s and Equalities Committee in Westminster.
What is not well understood by many people including what appears to be many MSPs who voted against the GRR is that the Bill has nothing to do with access to single sex spaces, prison placement or sports activities; it is only about the process that leads to a new birth certificate.
As all people will know, we do not carry birth certificates around with us as they are not identity documents and are only produced in certain circumstances. So the benefit for a trans person of a new birth certificate is being able to marry in church in their acquired gender, die recorded in that gender and bring their birth certificate into alignment with their already changed passport and driving licence, so that they are not ‘outed’ getting a job, or similar situations where all documents might be required. In addition, gender recognition was reduced to 16, the same age a person can vote for an MSP to attend Parliament in Scotland. Hopefully, it can be seen if a person has capacity to vote for an MSP they have capacity over their own gender.
It is difficult to comprehend the resistance to the Bill, as all the big issues about rights and when it is appropriate to exclude trans people in particular circumstances, were all decided in Westminster in 2010 when the Equality Act’s non-discrimination provisions for the protected characteristic of gender reassignment was agreed by Parliament. What’s more it was then agreed to base the Equality Act provisions on the principle of self-determination and for individuals to self-declare their gender identity.
In particular, the gender reassignment protections in the Sex Discrimination Act used to require medical supervision, a little bit similar to the current UK-wide Gender Recognition Act requiring a medical diagnosis of gender dysphoria, but this requirement was removed completely in the Equality Act.
In essence, all the GRR does is bring it into line with the way of operating for all the day-to-day activities governed by the Equality Act so that both are based on the simple principle of self-determination of gender identity.
That is not to say that I do not recognise the fear that women have been subjected to over this change in the law or that opponents of trans people have deliberately tried to conflate the recognised and real problem of predatory men and sex offenders with trans people to elevate those fears just in exactly the same way was done against gay people in the 80’s. The reality is evidence does not support these fears as it relates to gender recognition. To repeat a birth certificate is not an identity document and gives no right of access to single sex spaces.
Despite extensive consultations the committee steering the Bill through the Scottish Parliament concluded that no witness had presented any concrete examples of harm from gender recognition being based on self-determination principles. Again it needs to be stressed that we have had self-declaration as the basis of the Equality Act, including access to single sex spaces, subject to certain exceptions objectively justified, since 2010 throughout Great Britain.
Gender Recognition Reform Response
To give a relatively small number of trans people self-determination over their identity with no impact on anyone else’s rights would seem a humane thing to do, especially as it just allows trans people to function in a way that others take for granted.
Sadly, our Minister for Women and Equalities, Kemi Badenoch thinks differently and may try to stop both the GRR but also take away approval from countries who’s gender recognition processes are recognised in the U.K. and who we regard as allies.
Frankly, it is hard to fathom why she would do this when you understand the fact that the GRR has no impact on the UK wide Equality Act provisions and that many overseas territories’ gender recognition processes have been based on self-identification and have been recognised in the U.K. for very many years.
In particular, Shona Robison, Social Justice Secretary, has said: “The effect of a GRC remains what it has been for the last 18 years… The bill makes no change to this effect. It also very clearly does not modify the Equality Act 2010, which is now stated on the face of the bill.”
It has been indicated that the UK government may use S35 of the Scotland Act to stop the GRR getting Royal Ascent. Alister Jack, Secretary of State for Scotland, has until 19 January to lodge such a claim.
This power has never been used since inception of the Scottish Parliament and the Scottish Government are sure to oppose such a move as they have already stated they do not believe that the Bill has any impact on what are known as ‘reserved matters’ and the Equality Act as shown above.
So using such a sledgehammer or other provisions in the Scotland Act would put both Holyrood and Westminster on collision course.
As I see it, such an intervention would be a win win for Nicola Sturgeon and the Scottish independence movement and a real threat to further undermine the Union. Any legal dispute would likely be protracted and end up in the Supreme Court. If the Scottish Government won they would have won over Westminster, if they lost on a technicality it would be Westminster interfering with Scottish democracy. Either way the loser is our Union.
It would be an unusual member of the Conservative and Unionist Party who would threaten the Union over stopping a few trans people being able to marry, get jobs more easily and be recorded in the right gender on death. Very unusual indeed with unusual priorities given no women’s rights are affected as has been stated so many times by human rights and top Women’s organisations in Scotland.
Secondly, Kemi Badenoch has written to Parliament to say:
“There are now some countries and territories on the list who have made changes to their systems since then and would not now be considered to have equivalently rigorous systems. It should not be possible for a person who would not satisfy the criteria to obtain UK legal gender recognition in the UK to use the overseas recognition route to obtain a UK Gender Recognition Certificate in the UK. This would damage the integrity and credibility of the process of the Gender Recognition Act.”
Even though Scotland is not specifically mentioned this is another way, if the S35 route is seen as too unpalatable, to try and stop Scottish gender recognition certificates being recognised in the rest of the UK as well as create diplomatic chaos with lots of countries we regard as allies. It could also reduce one element of judicial review challenge should a S35 order be lodged that overseas countries weren’t getting ‘better’ treatment than proposed in Scotland. Time will tell the full purpose of intentions. But given the UK wide Gender Recognition Act specifically states that ‘Scottish Ministers’ have to be consulted on approving changes to the ‘approved overseas Territories’ list presumably you would get straight into another conflict situation with Scotland through this route also.
Before commenting on the diplomatic chaos, treating Scotland as though it was like an oversea country for gender recognition is not exactly in line with the Unionist cause is it? Trying to stop the Scottish gender recognition certificates through this process would again be challenged in the similar manner as for S35 referenced above, with the same risk to the Union.
Now let’s address all the trans people who are living in our great nation and have had their overseas gender recognition certificates approved as valid here in the U.K. and a U.K. certificate issued via the overseas recognition route and those who wish to come reside here in the future.
For decades the UK has recognised the legal gender identity of trans people who have moved here from countries with similar gender recognition processes. This includes many countries whose recognition process is now based on self-identification like New Zealand, Canada, Australia, Iceland, Denmark, Malta, Norway, many parts of the United States and Belgium to name but a few.
Then we have the special case of Ireland who have had gender recognition based on self-identification since 2015 where Ireland and the UK are part of a common travel area even though Ireland is not formally on the list of approved overseas Territories. “In short, the Republic of Ireland is not considered to be a ‘foreign country’ for the purpose of UK laws, and Irish citizens are not considered to be ‘aliens’.” House of Commons Library – “The Common Travel Area and the special status of Irish nationals in UK law”
Potential implications
Let’s bring this alive with some real people, who’s actual legal gender recognition status I honestly don’t know as I would never be so rude as to ask, but who are effective women doing their political jobs well.
All these trans women live in countries with gender recognition based on self-recognition and through their roles interact with the UK government at the highest level.
Petra De Sutter is a Belgian gynaecologist and politician, currently serving as federal Deputy Prime Minister. Are we now saying we will not be recognising her as a women?
What about Senator McBride from Delaware who I met when she came to London last year another trans woman. What is President Biden, who is vocally trans supportive, going to say when his nationals are not recognised including Assistant Secretary of Health Rachel Levine, another trans woman?
Much concern has now been thrown up about implications for transgender travellers and if removal of recognition of some countries’ gender recognition processes will lead to UK GRC holders, like me, not having their status recognised in other countries.
Where does disrespecting trans people and LGBT+ people in general end?
A letter from the ‘LGBT Consortium’ to the Prime Minister, representing the UK’s leading LGBT+ charities and support organisations, commenting on ending of the recognition of overseas Territory gender recognition processes states:
“Seeking to end this system is an extraordinary move that is not based on any evidence or experience.
“It sends a clear message that the UK Government does not feel trans people are worthy of respect in our society; instead, they are a threat to contain.
“These moves also directly oppose the inclusive values that characterise modern Britain and will actively harm the UK’s international reputation as an open, diverse and dynamic society – an important reason why global corporations who proudly support LGBTQ+ rights are attracted to doing business in the UK.”
The Welsh first minister, Mark Drakeford, said that he planned to approach the UK government for the powers to introduce a gender recognition bill similar to that passed at Holyrood. He also said in the Senedd that Wales would recognise GRC’s issued in Scotland.
Final thought
Not only are trans people and their human rights to dignity and self-determination being challenged but threats are being imposed to our precious Union, legal challenges almost certain to follow both within the UK judicial system and with referrals to the European Court of Human Rights.
As we are members of the Council of Europe this quote from Dunja Mijatovic, Council of Europe Commissioner for Human Rights seems appropriate:
“Trans people have the right to legal recognition of their gender identity. Legal gender recognition procedures should be quick, transparent, and accessible, and in line with internationally recognised human rights best practices, including self-determination. Such procedures have been implemented successfully in other countries while preserving everyone’s human rights.”
I ask Kemi Badenoch to fulfill her role as Minister for Women and Equalities and support the human rights of trans and all LGBT+ people with gender equality for all recognising that rights for women and girls and trans people were carefully weighed by Parliament with appropriate exceptions in place for exclusion when proportionate and objectively justified back in 2010 under the Equality Act.
I ask Rishi Sunak to reconsider and respect our Union, the democracy of the Scottish Parliament and the gender recognition processes of Scotland, Ireland and our allies. Let’s honour the pledge to be the ‘Competent Compassionate Conservative’ Party fit for modern inclusive Britain. Let’s have human dignity and respect for one another and let all of us have the right to self-determination in freedom and liberty where we build up each other’s human rights not tear them down.