Gender reform: Why the UK and Scottish governments are at odds over the Equality Act
According to Scottish secretary Alister Jack, the Scottish Parliament’s Gender Recognition Reform (GRR) Bill will have a “serious adverse impact” on the UK-wide Equality Act, which is why he has taken the unprecedented step of blocking it.
Some political commentators have rubbished the claim, saying an amendment from Labour MSP Pam Duncan-Glancy prevents the GRR from “modifying” the Equality Act – a claim that has, in turn, been disputed by various legal experts.
What has Jack said?
In a statement delivered in Westminster, Jack said he had chosen to block the legislation using powers outlined in Section 35 of the Scotland Act because he believes it would impact on laws Holyrood has no right to amend.
“This is not about preventing the Scottish Parliament from legislating on devolved matters but about ensuring that we do not have legal frameworks in one part of the UK which have adverse effects on reserved matters,” he said.
“We should be clear that this is absolutely not about the UK Government being able to veto Scottish Parliament legislation whenever it chooses, as some have implied. The power can only be exercised on specific grounds and the fact that this is the first time it has been necessary to exercise the power in almost 25 years of devolution emphasises that it is not a power to be used lightly.
“In the instance of the Gender Recognition Reform (Scotland) Bill, I have concluded that the bill would have serious, adverse effects on the operation of the Equality Act 2010.”
In a document outlining its full reasoning for opposing the legislation, the UK Government said it would “adversely affect the operation” of the Equality Act in four specific areas that cover clubs and associations, the operation of the public sector equality duty, equal pay, and provisions where exceptions apply for both sex and gender reassignment.
It added that there would be a “general lack of clarity” for both trans people holding Gender Recognition Certificates (GRC) and service providers over what status the certificate has and what restrictions on information apply, leaving employers and others unsure if it is lawful to disclose a person’s GRC status or history.
What about the Labour amendment?
When the UK Government announced it was going to block the passage of the bill Duncan-Glancy tweeted that she and her Labour colleagues had “worked day and night, and brought (and won) amendments, to make this legislation work”.
Specifically, Duncan-Glancy put forward a successful amendment to have the words “for the avoidance of doubt, nothing in this act modifies the Equality Act 2010” written onto the GRR.
At the time social justice secretary Shona Robison, whose name the bill was presented in, said having the words ‘for the avoidance of doubt’ was “not something normally we’d have on the face of a bill” but she was happy to support its inclusion “for absolute clarity” and to state “the facts of the matter”.
Colin Macfarlane, director of nations at Stonewall, tweeted that Duncan-Glancy’s amendment “makes clear” that the GRR “does not modify the EA 2010 in areas such as single-sex spaces”, adding that the act allows trans people to be excluded from such spaces “where there is a proportionate means of achieving a legitimate aim”.
Several MSPs have also pointed to the ‘for avoidance of doubt’ note as proof that the UK Government has over-reached by claiming the GRR will impact on the Equality Act.
Labour’s Jackie Baillie wrote on Twitter that “crucially, we succeeded in getting guarantees on the face of the bill that this does not and cannot undermine the Equality Act”.
Similarly, Neil Gray of the SNP wrote that the bill “literally says in its text that nothing in it impacts on the Equality Act”.
Who is right?
Responding to Gray, Roddy Dunlop KC, Dean of the Faculty of Advocates, noted that that there is a “material difference” between modifying an act and modifying the law as it applies to reserved matters.
Speaking to Holyrood, Dunlop said it is clear that GRR does not purport to amend the Equality Act itself, but that for the purposes of the Section 35 intervention that is neither here nor there.
“The question under Section 35 is not whether the bill amends the Equality Act,” he said. “Rather, it is whether it modifies 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 those matters.
“Accordingly, Section 35 allows the secretary of state to intervene even when the bill would be within competence, if its effects would impact on reserved matters – here, equality law – without actually amending the Equality Act itself.”
University of Glasgow public law lecturer Michael Foran agreed, noting that the specific wording of Section 35 “focuses on [the] effect modifying any law might have on reserved matters”.
In his opinion, he said, it is clear the GRR “changes the make-up of the groups in the Equality Act and changes the legal rules relating to schools and the public sector equality duty”.
What happens now?
Dunlop stressed that the situation with Section 35 is “not straightforward”, while Foran said it is “highly technical” and there is “absolutely scope for reasonable disagreement”.
Indeed, Lord Falconer, a Labour peer who served as both Lord Chancellor and Secretary of State for Justice in Tony Blair’s government, is of the opinion that the reasons put forward by Jack for challenging the legislation “did not justify the use of Section 35”.
In a long Twitter thread detailing his analysis of Jack’s arguments, he wrote that “on the four effects said to be made worse [by the GRR] the only one of any real significance is the one concerning associations”, but added it is likely that that the number of people seeking to join associations “such as those which provide support for women victims of sexual violence” would be so low as to seem “an utterly unsustainable basis for Section 35”.
Unsurprisingly, it seems almost certain that the matter is going to end up in the courts. Indeed, First Minister Nicola Sturgeon has already said it is “inevitable” that the courts will be asked to intervene, suggesting that her government would seek a judicial review of the UK Government’s decision at the Court of Session.
Even that has proved controversial, though, with lawyer Ian Smart suggesting that the First Minister made the announcement about going to judicial review without first checking that there was a legal basis to launch such proceedings. He is of the belief that, because Jack is acting on legal advice and so reasonably believes what he is doing is correct, there is no basis for such a claim.
Unlike other Scottish legislation that has been blocked by Westminster – think the bill that sought to incorporate the UN Convention on the Rights of the Child into Scots law – the GRR challenge will not be referred to the Supreme Court because Jack has chosen to go down the Section 35 route.
For the case to go directly to the Supreme Court – as was the case with the UNCRC bill – Jack would have to have challenged the bill using Section 33 of the Scotland Act. That stipulates that the higher court can be asked to determine whether laws are within devolved competence, while Section 35 is a straight veto.