Amidst much controversy, the Gender Recognition Reform (Scotland) Bill (‘the Bill’) was supported by the Scottish Parliament on 22 December 2022. It is proposed that the legislation will improve the system by which transgender people can apply for legal recognition through a Gender Recognition Certificate (‘GRC’).
What is a Gender Recognition Certificate?
A GRC is a certificate that legally recognises that a person’s gender is not the gender assigned to them at birth but is their acquired gender. Trans people have been able to apply for legal gender recognition in Scotland through a GRC since 2004.
What will change?
The Bill removes the current need for applicants to have evidence of a psychiatric diagnosis of gender dysphoria and lowers the age that trans people can apply for a GRC to 16. An individual with a Scottish birth certificate, or who is ordinarily resident in Scotland, will be able to self-certify after living as their acquired gender for three months (reduced from two years). 16 and 17 year-olds will be able to self-certify after they have lived as their acquired gender for six months, with a three-month reflection period. The requirements of the Gender Recognition Act 2004 will continue to apply in England and Wales.
Scottish Social Justice Secretary Shona Robison said:
“This is an historic day for equality in Scotland with the Gender Recognition Reform Bill being approved by parliament and by members of all parties. It simplifies and improves the process for a trans person to obtain a gender recognition certificate – which many currently find intrusive, medicalised and bureaucratic. The legislation makes no change to the reserved Equality Act 2010 and that principle is enshrined in the Bill. As I have made clear, the Scottish Government continues to support the provision of single-sex services and the rights of women. The passing of this bill is a significant step forward in creating a more equal Scotland, where trans people feel valued, included and empowered.”[i]
What concerns have been raised in relation to the Bill?
Opponents of the Bill are primarily concerned about the potential impact on women-only services, spaces and legal protections and have expressed concern that there are insufficient safeguards to protect women and girls from predatory men who could seek to change their gender to gain access to women-only facilities.
The Westminster government has raised concerns about the legislation and could prevent it from becoming law. To do so would be highly controversial and the first time this has taken place. The government could seek a ‘section 35’ order to stop the Bill receiving Royal Assent, if necessary, on the basis that it would have a harmful effect on equality law.
A spokesperson for the Equality and Human Rights Commission (‘EHRC’) has acknowledged that the ability to obtain a GRC is an important legal and personal recognition for many trans people but stated that the EHRC’s view is that the existing legal framework provides the correct balance that best protects everyone. The spokesperson further comments that it is important that constructive solutions are found to meet everyone’s needs. The EHRC welcomes the adoption of a government amendment which provides a duty for Ministers to produce guidance on the operation of the Equality Act and consults with the EHRC and other equality and human rights bodies in doing so.[ii]
How could the Bill impact on rights afforded to women under the Equality Act 2010?
Concern has been raised in relation to the implications that the Bill may have on sex discrimination, particularly equal pay. The Equality Act makes provision to treat people with the protected characteristic of gender reassignment differently from others sharing the same legal sex in certain circumstances (for example, in relation to occupational requirements, separate- and single-sex services, sport and communal accommodation), such provision does not apply in every context contemplated by the Act. The expansion of the availability of a GRC to a larger group is likely to have consequences in relation to the operation of sex discrimination (including equal pay between women and men).
However, the ramifications of the Bill on the operation of equal pay cannot be considered without considering the Court of Session judgment in For Women Scotland Ltd v Scottish Ministers made on 13 December 2022. It was held that for the purposes of the Equality Act 2010, “sex” was not limited to biological or birth sex but included those in possession of a GRC obtained under the Gender Recognition Act 2004 stating their acquired gender. Judge Lady Haldane said that the definition of sex was ‘not limited to biological or birth sex’. From an equal pay perspective, this is likely to mean that someone in possession of a GRC can compare themselves with someone of the opposite birth sex to their acquired gender under their GRC. If the Bill becomes law this will widen the scope of who can obtain a GRC and therefore who is able to make this comparison. There were calls to delay the decision on whether the Bill should be passed to allow time for consideration of the impact of this judgment but the decision went ahead in any event.
Does the Bill affect employers in England and Wales?
At the point at which the Bill becomes law, it will have limited direct impact on employers in England and Wales although there could be difficulty or confusion arising in cross-border situations, such as where a person’s residence is in Scotland and the employer is in England or Wales or where a person qualifies for a Scottish GRC due to having a Scottish birth or adoption certificate but lives and works elsewhere in the UK.
However, both the impact of the Bill and the Court of Session judgment are relevant to matters that are likely to become the subject of legal proceedings in England and Wales in due course. Further, it is reported that For Women Scotland Limited is considering an appeal to the Supreme Court of the United Kingdom and any decision made by the Supreme Court will be binding in England and Wales. Therefore, employers in England and Wales should be mindful of the current developments in Scotland.
If you would like specific legal advice in relation to the impact of the above developments, please contact a member of our Employment and HR team.
Disclaimer: this post has been produced for Napthens’ website blog and does not constitute legal advice.
[i] (2022) Gender Recognition Reform Bill passed Available at https://www.gov.scot/news/gender-recognition-reform-bill-passed/ (Accessed: 6 January 2023)
[ii] (2022) Statement following the passing of The Gender Recognition Reform (Scotland) Bill Available at https://www.equalityhumanrights.com/en/our-work/news/statement-following-passing-gender-recognition-reform-scotland-bill (Accessed: 6 January 2023)