Equalities watchdog calls on Scottish and UK governments to 'minimise risk' on transgender rule reforms

The Scottish and UK government must work together to "minimise the risk of uncertainty and discrimination" for trans people over planned gender recognition rule reforms, the UK's equalities watchdog has said.

In a letter to leaders raising concerns about the potential cross-border impact of change in Scotland, the Equality and Human Rights Commission (EHRC) said: "We urge both governments to work together to minimise the risk of uncertainty before the legislation proceeds."

Writing to Shona Robison, Nadhim Zahawi, and devolved administrations in Cardiff and Belfast, the EHRC says Scottish reform plans may affect the operation of the UK-wide Equality Act, which provides protection from discrimination on the basis of key characteristics. These include sex, race, religion, sexual orientation, age, pregnancy and maternity, marriage and civil partnerships, disability, and gender reassignment. 

The Scottish Government's Gender Recognition Reform (Scotland) Bill aims to make it quicker and easier for transgender people to change the legal sex recorded on their birth certificate and other documents, removing the need to obtain a diagnosis of gender dysphoria.

Charities including Equality Network have hailed the plan, while calling for greater recognition for non-binary people. However, opponents including For Women Scotland say the shift would erode sex-based rights for women.

The first debate on the bill is to take place on October 27.

In the EHRC letter, the regulator's chairwoman, Baroness Kishwer Falkner, says the parliamentary scrutiny process must provide "greater clarity" on a number of key areas.

The letter states that "it is assumed that a wider group of trans people" who may not meet the current UK criteria for a Gender Recognition Certificate (GRC) will in future be able to obtain legal gender recognition north of the Border if the planned reforms go ahead. 

The changes could affect the operation of laws over sex discrimination across the UK, the EHRC said, including equal pay, gender pay gap reporting and measures to address disadvantages experienced by women.

"Confusion" is "likely" to arise where a transgender person lives in Scotland but uses services in England unless the UK Government recognises Scottish GRCs in other parts of the UK, it is claimed.

The letter says it may be "difficult for trans people with Scottish GRCs to be certain of their legal status and rights" and, in some cases, a request from a service provider or employer for a GRC "could constitute unlawful discrimination".

On the proposals to allow 16 and 17-year-olds to change their legal sex, the EHRC says the UN Convention of the Rights of the Child defines anyone under 18 as a child and it must "consider the implications of the proposals for the rights of children and young people in England and Wales, including 16 and 17-year-olds with Scottish GRCs in other parts of the UK".

Commenting, policy analysis collective Murray Blackburn Mackenzie, which is critical of the proposed reforms, said: "MSPs across all parties need to take seriously this major intervention from the UK's equality watchdog.  It vindicates concerns raised by ourselves and others about the importance of the relationship between Gender Recognition Act reform and the Equality Act, which the Scottish Government and others, including the Scottish Human Rights Commission, have repeatedly sought to dismiss."

Meanwhile, Colin Macfarlane of Stonewall Scotland, which supports change, said: "Issues of cross border recognition of Gender Recognition Certificate changes would not be difficult to navigate given that the UK already recognises equivalent certificates from all EU/EEA countries, including by countries which have a de-medicalised model of legal gender recognition. These birth certificates are automatically recognised in England and Wales. The Commission has failed to provide any credible evidence as to why Scotland would be an outlier if these reforms are passed."