17 January 2023

Damaging Delay to Gender Recognition Reform in Scotland

Approximately 1% of the population are either trans[1] women, trans men or non-binary. Trans people don’t identify as the gender they were assigned at birth.

Being transgender is a protected characteristic under the Equality Act (“gender reassignment”) – it is unlawful to discriminate against someone because they’re trans. Broadly, subject to certain exceptions, public bodies, public service providers and employers must treat trans people in accordance with how they identify.

Some trans people go through a long, intrusive process to obtain a gender recognition certificate (GRC), which enables them to change their sex on their birth certificate. At present, this involves getting a psychiatric diagnosis of gender dysphoria. The majority of trans people don’t put themselves through getting a GRC, though, because they don’t accept they have a psychiatric condition. (This is a comparable situation to gay people being subjected to medication to “cure” them of who they were a few decades ago, such as Alan Turing).

The Scottish Government has drafted new legislation that removes the need for psychiatric diagnosis as part of the process for obtaining a GRC, for people living in Scotland – The Gender Recognition Reform (Scotland) Bill. It is empowered to do so by The Scotland Act – gender recognition is not a matter “reserved” for Westminster to legislate in relation to for the whole UK.

There has been a substantial backlash, which is largely based upon a submission that trans women having the right to be treated as women means cis[2] women are under threat. People who are against gender recognition reform submit that trans women change gender, but not sex, and that they are therefore in fact men, who should not be allowed to enter female-only spaces, because this endangers cis women.

As they cannot support this position by providing any evidence of trans women harming cis women, in female-only spaces or anywhere else, anti-reformers focus instead on a tiny number of examples of cis men pretending to be trans women to gain access to female-only spaces, then harming women. This is used as evidence to support a contention that trans women shouldn’t be able to access female-only spaces, because (it is argued) them being able to do so enables these cis men to do this.

Crucially, though:

  1. With or without trans rights, a cis man intent upon harming women could pretend to be a woman to access a female-only space;
  2. There is a specific exception to the default rule that trans women should be treated as women in the Equality Act, to do with “safe spaces” – organisations such as Rape Crisis Scotland, for example, can potentially justify not providing their services to trans women;
  3. It is notable that many such services for women who have experienced gender-based violence, including Rape Crisis Scotland, do not, however, see the need to apply this exception – in fact they are expressly trans-inclusive, in recognition of evidence of trans women often being vulnerable to gender-based violence; and
  4. It also warrants highlighting that a trans person doesn’t need to have a GRC to be protected from discrimination under the Equality Act. Consequently, making it easier to obtain a GRC in Scotland won’t open any “floodgates” in terms of trans rights, as anti-reformers suggest.

This focus on a supposed risk posed to safe spaces by gender recognition reform therefore seems to be a misleading distraction from anti-reformers’ actual mission, which appears to be to limit any recognition of trans people’s gender identity, and any right of trans people to be treated equally and with dignity.

As an equalities and human rights lawyer at Scotland’s largest law centre, engaged in tackling discrimination and disadvantage, I find that very concerning.

In any event, gender recognition reform in Scotland has been delayed – seemingly bowing to the relatively small but vociferous pocket of anti-reformers, the UK Government has refused to pass the Scottish Bill for Royal Assent. It has the power to do this under Section 35 of The Scotland Act, if it believes a piece of Scottish legislation will have an impact elsewhere in the UK, or attempt to modify UK-wide legislation.

Prior to the veto, the UK Government alluded to concerns the Scottish Bill attempts to modify the aforementioned safe space exception in the Equality Act, but it simply doesn’t – that exception will continue to apply, throughout the UK. If Scottish reform led more trans people to obtain GRCs, that would not impact the application of that exception at all, because it can be applied whether or not trans people have GRCs.

The Scottish Government has stated it will challenge the UK Government’s veto of the Bill, by way of judicial review proceedings. It is foreseeable that those proceedings will once again largely focus on Holyrood’s and Westminster’s respective powers to legislate for the people of Scotland, which risks equalities and human rights, and a desire for everybody to be safe from violence, becoming side issues.

At LSA, we work to uphold the equality and human rights of people with any protected characteristic, and therefore support gender recognition reform.

[1] “Trans” is an abbreviation of “transgender”: a term used to describe a person whose gender identity does not correspond with the sex they were assigned at birth

[2] “Cis” is an abbreviation of “cisgender”: a term used to describe a person whose gender identity corresponds with the sex they were assigned at birth

Gwyneth King

trans rights