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by Kirsteen Paterson
17 January 2023
UK Government reveals why it blocked Scottish Gender Recognition Reform Bill

UK Government reveals why it blocked Scottish Gender Recognition Reform Bill

The full reasoning for the UK Government’s move to block Scotland’s Gender Recognition Reform Bill has been published. 

The document was posted online one day after Scotland secretary Alister Jack announced the UK Government would order Presiding Officer Alison Johnstone not to send the bill to the King for royal assent. 

The instruction is the first of its kind in the history of devolution and was made using section 35 of the Scotland Act, which empowers the UK Government to act against devolved legislation it believes will impact on the operation of reserved matters. 

The decision has sparked a furious reaction from supporters of the bill and triggered accusations that Westminster is overriding Scottish democracy. 

Jack denied this in the House of Commons earlier today and the government paper now reveals the full set of reasons for the block. 

It states the bill – which makes it faster and easier to obtain a Gender Recognition Certificate (GRC), cutting the two-year wait to three months and opening the process to 16 and 17-year-olds – will “allow a new and significantly broader category of people to obtain a full GRC”. 

This, the UK Government says, would exacerbate some existing issues under the current GRC regime, and create other new problems, setting up “two parallel and very different regimes for issuing and interpreting GRCs” above and below the Anglo-Scottish border. 

And it claims it would “adversely affect the operation” of the UK-wide Equality Act in four areas covering clubs and associations, the operation of the public sector equality duty (PSED), equal pay and provisions where exceptions apply for both sex and gender reassignment. 

There would be a “general lack of clarity” for both trans people holding GRCs and service providers, it says, 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. 

Some “potentially unmanageable” consequences could emerge over the administration of taxes, benefits and pensions managed by integrated pan-UK systems, the government says, and existing IT systems “only allow one legal sex on any record and cannot change the marker for 16 and 17-year-olds". The document states: “Those responsible for these systems consider that it may be unmanageable, even with considerable time and expense, to build system capability to manage a dual identity for the same individual if someone’s legal sex could be different in Scots law and the law for England and Wales.” 

And because an overseas citizen could obtain a GRC under the proposed Scottish system, it could create a “bypass” system for those seeking to avoid the “more rigorous process” in place elsewhere in the UK. 

While the GRR bill makes it a criminal offence to give a false declaration of gender identity, Jack “does not believe that the bill creates significant safeguards to mitigate the risk of fraudulent and/or malign applications and believes that the reformed system will be open to abuse and malicious actors”, the government says – something it claims would erode confidence in the Equality Act as a credible framework to protect the operation of single-sex spaces, services, sports and occupational requirements. 

Monitoring equality for groups such as ethnic minority women in Scotland may be adversely affected, it says, and comparator tests between male and female earnings may fail in equal pay cases because of the potential widening of people holding GRCs which put them into a category other than their biological sex. 

That widening of GRC access could also create a “chilling effect” on organisations, disincentivising single-sex service provision and seeing people self-exclude from spaces services that could benefit them, the document says. 

The opening of GRCs to 16 and 17-year-olds would adversely affect single-sex schools, it is claimed, potentially forcing the “very small number” of such facilities in Scotland to become co-educational and creating issues for others in England, especially those nearest the border.  

There may be doubts about whether a birth certificate from Scotland “could be relied on as documentary evidence of a person’s legal sex” in England and Wales, it is argued, and lack of confirmation of a pupil’s transgender status could mean schools lack appropriate information for safeguarding and risk assessment, including on how best to support trans learners.

The full document can be found here.

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