GENDER RECOGNITION REFORM (SCOTLAND) BILL

Bill as passed

SCOTTISH PARLIAMENT

Gender Recognition Reform Bill passed

THE SCOTTISH PARLIAMENT – 22 December 2022 – The Scottish Parliament

Improving the legal recognition system for trans people.

The Gender Recognition Reform (Scotland) Bill has been supported by the Scottish Parliament.

The legislation improves the system by which transgender people can apply for legal recognition through a Gender Recognition Certificate (GRC).

Trans people aged 16 and older applying for a GRC will be required to make a legally binding declaration that they are already living in their acquired gender and intend to do so permanently.

The Bill includes safeguards against misuse of the system. It will be a criminal offence for applicants to make a false application. A new statutory aggravator and a risk‑based approach in relation to sex offences strengthen these protections.  

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.”…

UK government to block Scottish gender bill

BECKY MORTON & PAUL SEDDON – 17 January 2023 – BBC

The UK government has decided to block a controversial Scottish bill designed to make it easier for people to change their legal gender.

UK ministers say the draft law would conflict with equality protections applying across Great Britain.

It is the first time a Scottish law has been blocked for affecting UK-wide law.

Scotland’s First Minister Nicola Sturgeon called the move a “full-frontal attack” on the Scottish Parliament and vowed to oppose it.

She said the Scottish ministers would “defend” the bill, warning if the veto succeeded it would be the “first of many”.

The Scottish government is expected to challenge the ruling – potentially through a judicial review – but is waiting for more details from UK ministers.

Nicola Sturgeon’s government believe the current process is too difficult and invasive, and causes distress to an already marginalised and vulnerable minority group.

The UK government’s Scottish secretary Alister Jack will take the legal steps on Tuesday to confirm the move, and set out the reasons for it in a statement to the House of Commons.

In a letter to Ms Sturgeon, he said the bill would have a “significant impact” on protections contained in UK equalities legislation.

He cited concerns over its effect on legal rights to run single-sex clubs, associations and schools, as well as rules on equal pay for men and women.

He added that having “two different gender recognition schemes in the UK” risked creating “significant complications,” including “allowing more fraudulent or bad faith applications”.

The announcement was greeted with fury by Scottish Social Justice Secretary Shona Robison, who called the decision to block the bill “outrageous”.

Arguing that the bill does not affect UK-wide equalities law, she said the “political” move demonstrated the UK government’s “contempt for devolution”.

“This is a dark day for trans rights and a dark day for democracy in the UK,” she added.

This is a major and unique intervention from the UK government.

They have successfully challenged Holyrood legislation before on the basis that MSPs exceeded their powers.

But they have never blocked a Scottish bill on the basis that they think it will have a negative impact on UK law, in this case the Equality Act…

A constitutional clash looms on gender reforms

SEAN O’GRADY – 24 December 2022 – The Independent

To set aside sensitive moral questions and competing human rights is the best way to analyse the purely political aspects of the Gender Recognition Reform (Scotland) Bill. It is about to provoke a protracted constitutional wrangle. On balance, it is one that will serve the Scottish National Party best.
Having passed through the Scottish parliament, the bill awaits royal assent. However, the secretary of state for Scotland, Alister Jack, has 28 days to impose in effect a temporary veto on the bill reaching the King. This power, hitherto unused, rests in the foundational document of Scottish devolution, the Scotland Act 1998. Section 35 of the act states: “If a Bill contains provisions – (a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or (b) which make modifications of 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 the operation of the law as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.”
In this case, the “reasonable grounds” refer primarily to the Equality Act 2010. Equality is a matter reserved to Westminster, but matters of personal status, such as gender recognition, are devolved. The UK government cites the potential for the legislation to affect people outside Scotland if those who obtain new rights under it should travel elsewhere in the UK – in short, how it might affect the rights of women in England, Wales and Northern Ireland….

Scotland’s gender bill should worry Labour

ALEX MASSIE – 22 December 2022 – The Times

The end of a year is a fine occasion to confess an unpopular opinion. Voters enjoy believing that politicians are inveterate liars. The truth is often much more disturbing: what a politician says in public is usually what they mean. And if they keep saying the same thing, there is increasingly little reason to doubt them.

So I believe Nicola Sturgeon is in earnest when she protests that she is a “feminist to her fingertips”, and I accept her sincerity when she insists there is no conflict between the rights of transgender people and those of women. She is not lying. It’s much worse than that: she doesn’t understand the implications of the gender recognition reforms passed by the Scottish parliament yesterday.

“I have thought very, very deeply about all of these issues for a very long time,” she says, but longevity of thought has not been matched by any profundity.

The first minister doesn’t understand because she chooses not to hear and because, ultimately, she lacks the imagination to listen. Leading a government captured by gender ideology woo-woo, she assumes her critics are arguing in bad faith and her ministry has a monopoly on virtue. This is as modern as it is unhealthy.

Bravely, Scotland is henceforth a country in which the sensitivities of some sex offenders now trump those of women…

Reem Alsalem, UN Special Rapporteur on violence against women and girls

Protest at Holyrood – “… if this Parliament will not respect the rights of women, then you have no decency…”

Elaine Miller – Merkin Maker

Explaining her protest at Holyrood – 22 December 2022

A badly drafted piece of legislation – from whatever standpoint

ANN HENDERSON – January 2023 – Morning Star

The Scottish gender reform Bill is unworkable, unpopular and could impinge on reserved law with harmful results for women and girls. Labour should support the application of S33 and 35 of the Scotland Act to prevent it passing into law

THE opening ceremony for the new Scottish Parliament building on October 9 2004, the message in Edwin Morgan’s poem “Open the Doors! Light of the day shine in; Light of the mind, shine out” took centre stage.

A mood of optimism, of political confidence, and of a parliament which engaged fully with the citizens of Scotland, filled that new home for the Parliament.

We had moved from the temporary accommodation which had been the Parliament’s home since 1999, and there was still an enthusiasm for doing politics better than in the past.

That day, and that poem, has come back to me many times over recent months. Sitting in the public gallery during the week before Christmas, as MSPs debated the Gender Recognition Reform (Scotland) Bill, it was impossible to conclude that the parliamentarians were really doing their best.

Over three extended sittings, amendments were put forward and mostly rejected by the Scottish government. Two sessions ran on after midnight, with apparent disregard for any attempt at a family-friendly working environment, and no consideration for those with disabilities who needed additional support.

The Bill was passed in the Parliament on Thursday December 23, led by the SNP/Green partnership government, with support from Scottish Labour and the Liberal Democrats.

The Conservatives opposed the Bill but gave their members a free vote. Two Scottish Labour MSPs were absent and two voted against the Labour whip, against the Bill.

The Scottish government repeatedly asserted that this Bill was simply about changing the process by which a gender recognition certificate (GRC) can be obtained, simplifying it and removing the need for medical diagnosis.

In summary, a person over the age of 16 can apply for a GRC after living in their acquired gender after three months, and making a declaration that they intend to live in that “acquired gender” permanently. The administration of this moves to the National Register of Scotland.

The Scottish government estimates there could be a tenfold increase in the numbers of GRC holders in Scotland.

Earlier in December the Scottish government had obtained a judgement against campaign group For Women Scotland, which ruled that the legal position is that a GRC grants a change of sex under the Equality Act.

The ruling from Lady Haldane was barely mentioned in the Parliament chamber debate, and although frequent references in government speeches suggested that the GRR Bill would not affect the provisions of the Equality Act 2010, it clearly does.

We no longer have a stable definition of “woman” (or “man” for that matter) and there is therefore no clarity as to how protections or positive action measures afforded to women as a sex will be applied.

Numerous representations were made to the parliamentary committee which scrutinised the draft legislation. Some were heard, some were not called — perhaps most shockingly, female survivors of male violence and abuse were advised to put their concerns in writing.

It was left to others to give these women a voice, a point picked up by the UN commissioner on violence against women and girls, Reem Alsalem, who made representation to both the UK and Scottish governments with strong concerns about the potential harm that could come to women and girls if the legislation is passed in its draft form.

Amendments were tabled against lowering the age from 18 to 16; to provide protection and clarity for women in prisons; for intimate care; to allow continuation of policies which would ensure single-sex wards in healthcare settings; to ensure additional safeguards for young people; to fully cost additional support for young people seeking a GRC; tighter monitoring of the impact of the new legislation; procedures to ensure clear guidance to service providers, to local authorities, to schools; and to prevent known sex offenders from obtaining a GRC — all rejected.

The Scottish Parliament committee members did not exercise their duty to thoroughly scrutinise the draft legislation. Many points should have been explored in more depth. Safeguarding should have been at the heart of our MSPs’ concerns.

The interim findings of the Cass review were dismissed as not relevant in Scotland. An amendment proposing a delay until the final Cass report was published was rejected.

Some argue that this has been one of the most extensive consultations on a piece of legislation, running over several years in Scotland, yet the Scottish government and the Scottish Parliament have failed to thoroughly discuss cross-border implications.

It was clear from watching the final stages of the debate in December that there had been no serious attempt to establish clarity over the interaction between the Equality Act, which is reserved law, and the GRR (Scotland) Bill.

We now have a badly drafted piece of legislation, from whatever standpoint, and the prospect of intervention from the UK government. And that intervention is entirely understandable.

Arguably the GRR (Scotland) Bill, in changing the basis on which a GRC can be granted, and with the Haldane ruling supporting the Scottish government’s view that a GRC changes a person’s sex under the Equality Act, impacts on a reserved matter.

Scottish Labour took the government to task on some of the flaws in the legislation, members proposed amendments that were all rejected, yet somehow Labour then supported the final Bill.

Explanations are awaited on that one — but in the meantime, Labour should be supporting the application of S33 and 35 of the Scotland Act 1998, legislation proudly brought forward by a Labour government, and acknowledging that the devolution settlement did not give authority to the Scottish Parliament to pass legislation which impacts on reserved areas, in this case the Equality Act.

Public opposition to the Bill has become more visible in recent weeks and should not be dismissed. Too many questions remain unanswered, and this serves no-one well…