UK Government Within Its ‘Legal Rights’ to Intervene in Scotland’s Gender Recognition Law: Report

Scotland's First Minister Nicola Sturgeon addresses the Scottish Parliament in Edinburgh, on June 28, 2022. Jeff J Mitchell/Getty Images

A new report has made the case that the UK government can intervene in Scotland’s new gender reforms as they will dramatically affect laws in England, Wales, and Northern Ireland.

Scotland became the UK’s first country to back a self-ID process for legally changing gender when it passed The Gender Recognition Reform (Scotland) Bill in December.

Writing for the Conservative think tank Policy Exchange (pdf), Lecturer in Public Law Michael Foran said the Bill will fundamentally change the nature of the Equality Act in Scotland and across the United Kingdom.

The Scottish Saltire (L) and the Union Flag flutter above Stirling Castle in the historic town of Stirling, central Scotland, on Aug. 7, 2019. Andy Buchanan/AFP via Getty Images

Equality Act 2010

Lord Keen, a former advocate general for Scotland and justice minister backed the report.

The Bill allows anyone over the age of 16 to self-ID via a statutory declaration to obtain a new birth certificate, which changes the recording of their registered sex at birth to their chosen gender.

There is also no requirement for an applicant to undergo surgery or hormone therapy and the process to change sex on birth certificates has been simplified.

Furthermore, the time period applicants need to live in the acquired gender will be reduced from two years to three months, with the requirement for a medical diagnosis and evidence removed.

Foran’s concern was of the potential impact of the Scottish Government’s gender recognition legislation upon the operation of the Equality Act 2010, an Act which addresses issues reserved to the UK government and which operates throughout the UK.

The Scottish Government is a devolved government, meaning issues that have a UK or international impact remain the responsibility of the UK Parliament alone.

“It would not only be impractical but constitutionally improper for the UK Government to permit a devolved legislature to enact a provision that had a material impact upon the operation of the law throughout the United Kingdom,” said Foran.

Major Changes

Foran noted that there are six ways in which the Scottish Gender Bill will change how UK law works.

“It will change the operation of the law in relation to single-sex services, making it potentially more difficult for women-only spaces to exclude biological males,” wrote Foran.

“It will change the operation of the law in relation to single-sex associations which cannot discriminate on the basis of gender reassignment in their membership admissions,” he added.

The report found that single-sex girls’ schools in England will have to admit biologically-male pupils under the Bill.

“It will change the law relating to single-sex schools. The law as it stands provides that 16–18-year-old biological males who hold a Gender Recognition Certificate cannot be excluded from single-sex girls’ schools,” he said.

“There is no exception for gender reassignment discrimination in relation to schools. This Bill will confer on certain biological males a legal right of admission to girls’ schools, a right which otherwise does not exist,” he added.

Critics of the legislation say that a self-identification system could be exploited, or male prisoners may abuse the system. The proposals have encountered recent criticism from the UK government and the Equality and Human Rights Commission (EHRC), which in October called for more consultation with all those affected by proposed changes.

Shona Robison MSP, Cabinet Secretary for Social Justice, during day two of the debate for the Stage 3 Proceedings of the Gender Recognition Reform (Scotland) Bill, on Dec. 21, 2022. Andrew Cowan/Scottish Parliament/PA Media

Veto Power

Foran said that the UK government is within its legal rights to make a section 35 order prohibiting the Bill from gaining royal assent in its current form.

Though he added that there is a separate question concerning whether or not the UK government believes “this course of action to be prudent or desirable.”

“If the UK government does choose to make an order, it will then be open to the Scottish government to reintroduce the Bill into the Scottish Parliament sufficiently revised such that it does not modify the law relating to reserved matters,” he added.

“This will place an effective pause on the introduction of the Bill and allow time for both governments to constructively negotiate about changes to the Bill that will clarify its precise legal implications and address any additional concerns relating to its impact on UK wide equality law,” he said.

He said that it is not an outright veto power, it “merely prevents the Bill from receiving royal assent and in practice this opens a dialogue between the two governments to ensure that a revised version of the Bill will not affect the operation of the law relating to reserved matters in a manner unacceptable to the UK government.”

Safety Issues for Women and Children

When the Bill was passed, Scottish Secretary Alister Jack said that the UK government could consider taking it to the Supreme Court.

“We share the concerns that many people have regarding certain aspects of this Bill, and in particular the safety issues for women and children,” he said.

“We will look closely at that, and also the ramifications for the 2010 Equality Act and other UK-wide legislation, in the coming weeks, up to and including a Section 35 order stopping the Bill going for Royal Assent if necessary,” he added.

In response to potential intervention Monday, the LGBT charity Stonewall said that “ending reciprocal recognition of Gender Recognition Certificates (GRCs) from countries that support trans people changing their legal gender using a self-determination model is a disgraceful low for the UK Government’s approach to LGBTQ+ rights.”

A Scottish government spokesperson told The Epoch Times by email:

“The Bill as passed is within legislative competence, and was backed by an overwhelming majority, with support from members of all parties. Any attempt by the UK Government to undermine the democratic will of the Scottish Parliament will be vigorously contested by the Scottish Government.”

“We have always been clear that the Bill does not impact on the Equality Act, and the Bill as passed puts that position beyond doubt,” he added.