Why the UK Government could still block Scotland's gender reform

The Scottish Parliament has just passed the Gender Recognition Reform Bill. Once enacted, the bill will make it easier to change one’s legal sex in Scotland.

This has proven to be extremely controversial, prompting calls from some feminist groups that the introduction of “self-ID” via a statutory declaration will undermine women’s sex-based rights.

In contrast, trans-advocacy groups have welcomed this bill, viewing it as necessary for the full recognition of gender-based rights. This very contentious debate reveals an important tension running through UK equality law.

Many have argued that women’s sex-based rights are under threat. Many have argued that the recognition of trans women as women for the purposes of UK law poses no threat to women’s rights. 

For a time, there was ambiguity as to the interaction between the Gender Recognition Act 2004 and the Equality Act 2010. Last week, that came to a head when the Outer House of the Court of Session – in a case brought by the For Women Scotland group – determined which conceptions of sex and gender are embraced by UK law.

Lady Haldane concluded that the legal concept of “sex” can and does include more than biological sex. The result is that for most instances, except for legislation “where it is clear that ‘sex’ means biological sex”, a holder of a Gender Recognition Certificate (GRC) will be legally considered to be the sex of their acquired gender “for all purposes”.

One of the recurring arguments advanced around self-ID laws is that they will undermine women’s sex-based rights to exclude men from single-sex spaces. The Equality Act provides an exception which permits duty-bearers to create exclusive spaces and to exclude on the basis of sex or gender reassignment. This is only permissible where it is objectively justified.

But having a GRC may make it harder for services to show that exclusion is proportionate and justified.

Additionally, certain provisions in the Equality Act permitting the setting up of single-sex services seem to envisage them to be defined by reference to biological sex. For example, where there is likely to be physical contact between persons and someone might reasonably object if that occurs from someone of the opposite sex. It is clear that here this provisions envisage sex to mean biological sex.

Conceptual clarity is needed in this area, especially regarding positive equality measures designed to improve women’s representation. One cannot be attuned to disparities between various groups at a nation-wide level if the membership of those groups is different between Scotland and the rest of the UK.

The U.K. government has three options open to it if it wishes to intervene in this context.

1. It can use s.104 of the Scotland Act to pass regulations clarifying whether Scottish GRCs will be valid in the rest of the U.K.
2. It can use s.33 of the Scotland Act to refer the bill to the UK Supreme Court to assess whether the bill is within the competence of the Scottish Parliament
3. It can use s.35 of the Scotland Act to make an order vetoing the bill, regardless of whether it is within competence, because it adversely affects the law relating to the reserved matter of equal opportunities.

Given the significant uncertainty surrounding the status of Scottish GRCs in the rest of the UK, it is incumbent upon the UK government to use s.104 to clarify this one way or the other.

It is highly unlikely, although not impossible, that this bill is outwith the competence of the Scottish Parliament. The Gender Recognition Act is devolved and a change to it will not directly alter the Equality Act. The Supreme Court will likely need more direct modification to conclude that the bill is outwith competence.

However, s.35 orders are designed to be used even when a bill is within competence and so the legal test here is whether there would be an adverse alteration to the law relating to a reserved matter (in this case equal opportunities). This is very likely to be the case.

One example is the representation of women in senior positions within civil society. You can either interpret representation of women on company boards to mean representation of legal women or biological women, but it cannot mean both.

If equal opportunity is concerned with the sex-based interests of biological women as against biological men, then this bill will alter equal opportunity duties and could frustrate measures taken to address group-based disadvantage.

A change in the law to alter how one obtains a GRC in Scotland will create disparities between how these positive duties apply across the UK, given that the category of legal female will cover different groups. This is important; the public sector equality duty is not concerned with individual claimants but with group-wide disparities. So, overall numbers matter. A dramatic change in how a group is constituted in one jurisdiction makes nation-wide monitoring and implementation much harder.

The upshot would be that measures designed to advance the representation of women in certain areas will be advancing different groups depending on whether or not the Scottish category of legal women is used. This broader category of legal women can have their interests advanced such that, for example, a company board could have ten seats set aside for legal women and there may be policy reasons why the government wishes such polices to be focused on biological women instead. 

This will likely destabilise existing categories and frameworks for the purposes of the reserved matter of equal opportunities and could therefore lead the Secretary of State to issue a s.35 order prohibiting the Presiding Officer from submitting the bill for Royal Assent.
 

Michael Foran is a lecturer in public law at the University of Glasgow