Scottish government is instead expected to go to court to challenge legality of UK government’s 35 order
Scotland’s gender recognition reform bill has triggered a constitutional row because health (and gender recognition) are devolved matters, but equality law is a matter for the UK parliament.
In her Today interview Shona Robison, the Scottish government’s social justice secretary, insisted that the gender recognition reform bill would not undermine or change UK equality law. This is an argument the Scottish government has been making for some time, and Robison said this morning.
[The bill] simplifies the process for obtaining a gender recognition certificate. It does not change the effect of having one. All of the protections under the equality legislation remain exactly the same.
The law regulating legal sex change is found in the Gender Recognition Act 2004, an Act of Parliament that applies across the UK and which addresses both reserved and devolved matters. It provides that to change one’s legal sex, one must first be diagnosed with gender dysphoria and undergo a two-year period of medically supervised social transition. The Scottish Gender Recognition Reform Bill could change all this for those born or resident in Scotland. If enacted, the Bill would remove the requirement to be diagnosed with gender dysphoria, reduce the statutory waiting time from two years to three months, and lower the minimum age for a legal sex change to sixteen.
Whether or not this has any effect on the operation of the Equality Act – adverse or otherwise – depends on whether a change in “legal sex” changes one’s “sex” for the purposes of the Equality Act. For a time, the answer to this legal question was not clear and arguments could be – and were – advanced on both sides. But on 13 December 2022, Lady Haldane decided the For Women Scotland v The Scottish Ministers (FWS2) case in the Outer House of the Court of Session. Her Ladyship’s decision was that a Gender Recognition Certificate, issued under the 2004 Act, does alter one’s sex for the purposes of the Equality Act, including for provisions relating to the advancement of diversity via positive measures.
The protections under the equality legislation have exemptions. So [in] a female-only space, trans women, whether or not they have a gender recognition certificate, can be excluded from that female-only space. That is the current position. It remans the position. This bill changes none of that.
Members of Aslef will walk out on February 1 and 3, causing more travel disruption across the country.
The first strike will coincide with a walkout by 100,000 civil servants in their dispute over pay and jobs, a strike by teachers over pay and nationwide protests against the government’s controversial new strike law.
