9 January 2023

Scotland’s gender recognition reforms are a legislative mess


Twice over the past two years the UK Government has said ‘no’ to reforming the Gender Recognition Act to remove medical assessment and bring in a system of self-declaration. The first time was in 2020 after an intense consultation and lobbying by Stonewall and other LGBT groups. The second was in December 2021 in response to the Women and Equalities Committee demanding the same set of radical reforms.

Twice the Government held its nerve and defended the existing legislation, saying that the requirement for evidence and diagnosis ‘ensures that the process is rigorous and provides assurance that the system is robust’. 

The Gender Recognition Act was brought in in 2004 to solve a particular problem for a particular group of people: people with a diagnosis of gender dysphoria who had taken extreme steps, including surgery, to try to appear as close as possible to the opposite sex. It was estimated there were around 5,000 such individuals in the UK. It was envisaged that these people, most of whom would have surgery, would want to blend in and keep their birth sex private for most purposes. A Gender Recognition Certificate (GRC), which allows someone to get a new birth certificate was intended to protect the privacy of their personal information (as ordered by the European Court of Human Rights).

Since then around 6,000 people have received certificates (around the same number who have had surgery), suggesting the system is working as it was intended.

Now the Scottish Government is trying to circumvent Westminster, creating a ‘Gretna Green’ regulatory haven for people to change their legal sex without any of the assessment or safeguards required in the rest of the UK. 

The Scottish Parliament passed a bill at the end of December which does away with evidence and diagnosis and offers a ‘legal sex change’ to children from age 16, and to any adult who has done as little as adopt new pronouns or change their name for three months. All that is required is that they make themselves temporarily resident in Scotland and solemnly promise that they intend to live ‘in their acquired gender’ for the rest of their life. So far the Scottish system only offers a choice of two genders, but they are already considering the possibility of a ‘non-binary’ option. 

Stonewall have long argued that if the definition is widened in this way there may be as many as half a million transgender people in the UK. New figures from the 2021 Census in England and Wales show the numbers are a bit more modest, but still many more than currently have GRCs.  A quarter of a million people in England and Wales say ‘the gender they identify with is not the same as their sex registered at birth’ including 96,000 who identify as the opposite sex (i.e. trans men or trans women). 

The Scottish Government explicitly states it is legislating to provide a means for people to bypass the UK gender recognition process while offering a certificate which ‘has the same effects and offers the same rights and responsibilities’. This is an encroachment into the UK’s reserved legislative domain, on behalf of a group that doesn’t like taking ‘no’ for answer. 

The Scottish Government says they are ‘not changing the legal effect of possessing a Gender Recognition Certificate’ and admit ‘if we were to do so that would lead to differing effects between Scotland and the rest of the UK’. But they are seeking to change the means of getting one. They have enacted the very legislation the UK government has twice said ‘no’ to, while saying they are not legislating for the UK. 

If a Scottish GRC is accepted as having the same effect as one issued under the UK system it will mean allowing a quite different group of people to change their legal sex across the country, with significant consequences for reserved laws like the Equality Act. It could lead to male prisoners with Scottish GRCs demanding to be housed in women’s prisons, and 16 and 17 year-olds demanding to be accepted into single-sex schools as if they were the opposite sex. 

Most directly it will result in a threat of criminal penalties being applied to anyone who discloses information on a person’s sex, if they know they have a GRC and are dealing with them in an official capacity (for example at work, or in providing a service to customers.). 

This extreme privacy protection would apply in relation to people who have made no effort to keep their sex hidden, but who instead argue that having a male body doesn’t stop you being a woman, and that you must be allowed to access female facilities ‘like any other woman’ (and that anyone who disagrees is a transphobe). The Scottish system would in effect make ‘misgendering’ someone by mentioning their sex, even for good reasons such as other people’s privacy and dignity, something that could result in criminal prosecution and a £5,000 fine. 

These are exactly the changes the UK government said ‘no’ to. This is not a slight administrative change. Nor is it something the European Court of Human Rights requires. 

The ball is now in the UK government’s court to decide what to do before January 19. They could send the Bill to the Supreme Court on constitutional and human rights grounds, or use the policy veto in Section 35 of the Scotland Act to stop the Bill going to royal assent (this would then be challenged by the Scottish government and probably end up in the Supreme Court eventually). Ideally they should do both in sequence. Sex Matters has published a briefing on the options

Much of the focus of debate on this has been on impacts on women’s rights. But the most immediate impact (and the one through which everything else flows) is on freedom of speech, and clarity of the law.

Giving the very small number of people who have taken extreme steps to change their gender under medical supervision an exceptional provision to protect their privacy is one thing. Demanding that everyone pretend they can’t tell the difference between a man and a woman is quite another. It is this attack on freedom to speak the most basic truths that will make it impossible to provide single-sex services, to teach sex education responsibly, to safeguard children and vulnerable adults, to collect accurate data, or simply to talk about what everyone knows. 

The Supreme Court has already ruled in the British Government’s favour in its refusal to issue  ‘X Passports’ to people who identify as non-binary. 

The government argued in that case, and it should argue again now, for the value of coherent legal and administrative systems. This is not merely a matter of convenience, but underpins the ability of the state to protect human rights and freedoms by acting in a manner that is reasonable, foreseeable and consistent.

Click here to subscribe to our daily briefing – the best pieces from CapX and across the web.

CapX depends on the generosity of its readers. If you value what we do, please consider making a donation.

Maya Forstater is Executive Director of Sex Matters.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.