UK Government blocks Scottish Gender Bill

In an unprecedented move, the British government has made an order under Section 35 of the Scotland Act 1998 to block the Gender Recognition Reform (Scotland) Bill, which contains amendments to the Gender Recognition Act 2004, from receiving Royal Assent.

What provisions does the bill contain?

Members of the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill on 22 December 2022. In summary:

• It extends the right to apply for a GRC (Gender Recognition Certificate) to 16 and 17 year olds;
• It makes it easier to acquire a GRC by removing the requirement for a psychiatric diagnosis of gender dysphoria; and
• It drops the required time for an applicant to live in their acquired gender before self-certifying from two years to three months.

What is Section 35 of the Scotland Act 1998?

• Section 35 of the Scotland Act 1998 is a provision enabling the Secretary of State for Scotland to ‘veto’ bills brought forward to Scottish parliament. A 2012 Memorandum of Understanding refers to its use as ‘a matter of last resort’.
• The veto power can be exercised where the Scottish Secretary of State (Alister Jack) has ‘reasonable grounds’ to believe that any proposed legislation passed by the Scottish parliament would have an ‘adverse effect’ on the operation of the law as it applies to reserved matters (i.e. that it would override an existing piece of legislation which applies in England, Scotland and Wales and, as a consequence, limit its ability to operate).
• Use of a Section 35 ‘block’ means that a negative statutory instrument is presented to the UK parliament, which provides a legal instruction to the Presiding Officer of the Scottish Parliament not to present a bill for Royal Assent.
• Alister Jack acknowledged that use of the veto power constitutes ‘a significant decision’ and encouraged Holyrood to put forward an amended bill compatible with the UK Equality Act 2010 in order ‘to find a constructive way forward’
• LGBT+ Charity Stonewall has criticised the block, calling it a ‘nuclear option’.

Rationale?

The Secretary of State has published a Statement of Reasons explaining the rationale behind its use of Section 35. In summary:

• The Bill would remove a number of measures which the UK government regards as important safeguards, including third-party verification and evidence that applicants meet the criteria to receive a GRC, both of which may result in an increased risk of fraudulent applications from ‘malicious actors’;
• The Bill is constitutionally incompatible with the UK Equality Act 2010, particularly in regards with how unlawful discrimination on the grounds of ‘sex’ is defined;
• The Bill would have a number of specific adverse effects on the operation of the Equality Act 2010, including single-sex clubs and associations, differing application of the public sector equality duty across devolved nations, and use of the comparator test in equal pay claims; and
• The Bill would have practical and unmanageable consequences on the operation of the law regarding other matters, including the administration of tax, benefit and State pensions, as well as the operation of single-sex schools which could risk being in breach of anti-discrimination laws unless they admit holders of a GRC.

Consequences

The Scottish parliament is expected to apply for judicial review of the ‘block’ on the basis that there are no ‘reasonable grounds’ for believing that the Bill would have an adverse impact on how the law relating to reserved matters operates.

On 25 January, the Scottish government published correspondence between Shona Robinson, Cabinet Secretary for Social Justice, Housing and Local Government in Scotland, and Alister Jack, during which she stated that the UK Government’s use of Section 35 represented an ‘attack on the democratically elected Scottish Parliament’, and was incompatible with devolutionary legislation and the memorandum of understanding between the two governments.

However, Lord Hope of Craigshead, former deputy president of the final court of appeal, cautioned against legal action, considering the Scottish government’s chance of success to be ‘very low’.