New clause 15A of the Gender Recognition Reform (Scotland) Bill: a chocolate fireguard? 

The Gender Recognition Reform (Scotland) Bill proposes a raft of amendments to the gender recognition process in Scotland. It sounds dry and technical, and of interest only in Scotland. But the changes proposed by the Bill, including sweeping away the requirement for a medical diagnosis and reducing the minimum age to 16, will be of great legal and practical significance south as well as north of the border. This is because Scottish GRCs will be available to anyone who is resident in Scotland at the time of the application, or whose birth or adoption was registered in Scotland. If it goes through, there will soon be many individuals holding Scottish GRCs – granted on the basis of radically loosened criteria – resident in the rest of the UK. 

Similar changes were mooted by the Westminster Government in its 2018 consultation on GRA reform, but abandoned in light of the responses to that consultation. 

There’s much current debate about what exactly a GRC means for the operation of the Equality Act 2010, and especially for the operation of the single-sex exceptions in the Act. As yet, there are no definite answers provided by binding case-law. It has been widely argued that a GRC allows a biologically male holder easier access to all women-only spaces (toilets; changing rooms; single-sex hospital wards – including locked psychiatric wards where some of the most vulnerable and traumatised women in society are detained; rape crisis centres; prisons etc) subject only to very narrowly construed exceptions. Official guidance on the subject is in a state of flux. A statutory Code of Practice published in 2011 by the EHRC, the UK’s equality law regulator, suggests that a person with a GRC must be treated for the purposes of the exceptions as being of the “acquired sex”, which makes it more difficult to justify exclusion. More recent non-statutory guidance is silent on the impact of a GRC, and the 2011 Code is now under review.

If the Bill in its current form is passed, single-sex spaces and services will come under intense pressure from members of the new, larger group possessing GRCs who feel entitled to automatic access. And public authorities and service-providers may well often be intimidated into allowing that access by the complexity and uncertainty of the potential legal arguments. There is already plentiful evidence that providers are struggling to understand the law here. Both the EHRC and the UN special rapporteur on violence against women and girls have raised grave concerns about the impact of the Bill. 

At Stage 2, Labour’s Pam Duncan-Glancy MSP introduced an amendment that purports to deal with these worries. This was agreed, inserting into the Bill a new clause 15A. Having given evidence to the Scottish Parliament on these subjects earlier this year, I want to supplement that evidence to comment on whether the amendment deals with the concerns above. 

 Clause 15A says: 

“For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”

This is vacuous. The Bill couldn’t modify the Equality Act if it wanted to, because equal opportunities is a subject that has been explicitly put beyond the legislative competence of the Scottish Parliament by the Scotland Act 1998 (schedule 5, part II, paragraph L.2). If an Act of the Scottish Parliament purports to do something beyond the Parliament’s legislative competence, the provisions in question are simply ineffective. 

So this new clause does precisely nothing. 

The problem was not that the Bill (before amendment) modified the Equality Act – it couldn’t do that anyway – but that the Bill makes it much easier to get hold of a certificate that may have profound consequences for the way in which the single-sex exceptions in the Equality Act operate. As another witness to the Scottish Equalities, Human Rights and Civil Justice Committee suggested, this is best understood by thinking of those provisions of the Equality Act as creating a locked door to which only a few people have the key. The new clause added by Pam Duncan-Glancy’s amendment says: “For the avoidance of doubt, we’re not removing the door, or changing it or its lock in any way.” That’s irrelevant. The door and its lock are safe in Westminster, and the Scottish Parliament couldn’t change them if it tried. What the Bill proposes to do – and at least arguably can do – is manufacture thousands of extra keys to the door, and hand them out to pretty much anyone who says they’d like one. The amendment doesn’t address that. 

That’s not to say that the Bill couldn’t be amended to make explicit that any GRC issued under it has no effect for the purposes of the Equality Act. The EHRC suggested something very like the amendment proposed at Stage 2 by Foysol Choudhury MSP to achieve this, but the Scottish Government rejected it. 

For such an amendment to be fully effective, it would ideally be accompanied by changes to the privacy provisions in Section 22 of the GRA 2004. This section already creates confusion and fear among service-providers. At least one Scottish health authority has stated that it cannot guarantee female healthcare on the grounds of protecting privacy. The Employment Lawyers’ Association analysed the problem at paragraphs 27-30 of its written evidence to the Westminster Parliament of November 2020. 

A petition lodged at Westminster by Sex Matters earlier this month asks the UK Government to modify the Equality Act 2010 to put it beyond doubt that the terms “sex”, “male”, “female”, “man” and “woman” in equality law mean biological sex and not “sex as modified by a Gender Recognition Certificate”. This is something only Westminster can do, but it is a simple and powerful solution that would bring closure to the heated and sometimes toxic debate about what exactly is the impact of a GRC on the operation of the Equality Act. 

This problem can be solved in various ways, but clause 15A isn’t one of them. 
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Naomi Cunningham is a barrister specialising in discrimination law.  She gave evidence to the Scottish Parliament in June 2022: https://www.scottishparliament.tv/meeting/equalities-human-rights-and-civil-justice-committee-june-14-2022; and to the Westminster Equality and Human Rights Committee.  She was a member of the working group that wrote the response of the Employment Lawyers’ Association to the Women and Equalities Committee’s 2020 call for evidence. The commendably non-partisan working group also included Robin Moira White and Nicola Newbegin, authors of a 2021 book, “A Practical Guide To Transgender Law”.