What Does Scotland’s Gender Reform Bill Mean for the UK?

David Kinane for Distilled Post

The Gender Recognition Reform Bill reforms the Gender Recognition Act and streamlines the process of allowing transgender people to obtain a gender recognition certificate (GRC). Once one has obtained a GRC it then allows them to change the sex recorded on their birth certificate, which then has the corollary effect of giving them the ability to alter the sex on their marriage and death certificates. It is not necessary to have a GRC to change the registered sex on other forms of ID, such as a person’s passport or driving licence. 

Under the current system in order to obtain a GRC a transgender person must be at least 18 years old and have been diagnosed by a general medical practitioner with gender dysphoria. This needs to be followed up with two medical reports, with one of those being written by a licensed psychologist and finally they must be living as their preferred gender for at least two years. 

Changes made by the new, first demedicalise the process of acquiring a GRC, in no longer requiring a diagnosis of gender dysphoria instead a gender recognition certificate is acquired through a process of self-identification. Second they reduce the required time period for one to live as the gender they identify as from two years to three months (with a three month reflection period) and third they reduce the age at which one can apply for a GRC from 18 years old down to 16 years old. 

There are also technical changes made to the governing body that oversees applications for a GRC whereas previously, one would apply to a UK-wide tribunal composed of both legal and medical experts, under the new changes applications are sent to the General Register Office of Scotland. 

Under its international obligations namely article eight of the European Convention of Human Rights the U.K. is required to have some statutory process that gives legal recognition to transgender people. 

What it does not mean 

The Gender Recognition Bill does not grant transwomen the automatic right to participate in women’s sports. This is decided on a case-by-case basis by sports governing bodies such as the International Olympic Committee and this is based on their own criteria. It also doesn’t determine whether transgender women have the right to use female single sex spaces or services. This is instead determined by the Equalities Act (2010), which permits exclusions of transwomen where there is a “justifiable and proportionate” need according to the Equality and Human Rights Commision. Prior to 2010 it was determined by the Sex Discrimination Regulations of 1999. 

Sexual related offences are also not recorded differently based on an offender's possession of GRC either. According to a freedom of information request, West Midlands police have been recording gender as a matter of self-ID since 2011 and is unrelated to the Gender Recognition Act. 

Why did the UK block the bill? 

The Secretary of State for Scotland perceived there to be a conflict with the gender reforms proposed by Holyrood and U.K. wide equality law. He reasoned that the bill would have “consequences for the operation of UK legislation on reserved matters”, namely that it would adversely affect the UK’s implementation of the Equalities Act (2010). 

Often equal pay for men and women is identified by critics of the bill, as one example of this. Since the new law creates a dual system for recognising one’s gender, it would be difficult for an employer to use a person who is Scottish and someone who isn’t as a comparison for equal pay. 

The section 35 order may be challenged in the supreme court depending on which candidate wins the next SNP leadership election (Ash Regan has said she won’t pursue this course of action), but either way, in order for the bill to proceed it will likely mean changing or amending the legislation.