Gender recognition and the risk of encouraging a constitutional crisis

This week it was announced that the UK Government has blocked the Gender Recognition Reform (Scotland) Bill (“the Bill”) from receiving Royal Assent by invoking its powers under section 35 of the Scotland Act 1998. As well as causing disappointment and heart ache for trans people and allies who had welcomed the Bill, some say it also risks encouraging a constitutional crisis. But why is the bill so controversial and what is section 35?

The Gender Recognition Reform (Scotland) Bill

The Bill was introduced to the Scottish Parliament in March 2022 following a public consultation in 2018 on proposals to reform the process for obtaining legal gender recognition. The consultation received almost 16,000 responses, with 60% agreeing that a self-declaratory system for legal gender recognition should be introduced.

The provisions of the Bill would amend the Gender Recognition Act 2004 (“GRA 2004”) in Scotland and apply to those who are ordinarily resident in Scotland or hold a Scottish birth certificate. Meanwhile, the unamended GRA 2004 would continue to apply in England and Wales.

At the heart of the Bill is the removal of the requirement to provide a psychiatric assessment or diagnosis of gender dysphoria in order to obtain a gender recognition certificate (“GRC”). This is something which has been known to cause significant delay with the Gender Identity Clinic currently operating a five-year waitlist for first appointments.

The Bill also reduces the minimum age for applicants from 18 to 16 with additional safeguards for those applying who are aged 16 or 17. For anyone applying who is over 18, the requirement to have lived in their acquired gender for two years is reduced to three months, with an additional three-month period of reflection following the making of an application. For a 16 or 17-year-old applicant, they will need to have lived in their acquired gender for six months and confirm they have received guidance on the implications of obtaining a GRC, as well as then completing the three-month reflection period.

Although these changes have proved controversial in the UK, similar provisions have already been introduced in other countries. In Ireland, self-declaration was introduced in 2015 and gender recognition can be obtained through medical observation, parental consent and a court order for 16 and 17 year olds. In the rest of Europe a further eight countries allow self-declaration with certain safeguards – including Belgium, Denmark, Norway and Switzerland.  And in the US, self-declaration for the gender marker on passports has been possible since 2021 across all states.

As a result of the controversy surrounding the proposed changes in the UK, the Bill received extensive scrutiny in the Scottish Parliament. In addition to a further public survey there were 33 committee meetings, 300 amendments and two days of debate before it was finally passed on 22 December 2022 with 86 for and 39 against.

Section 35 and the risk of encouraging a constitutional crisis

On 17 January 2023, the Secretary of State for Scotland, made an order under section 35 of the Scotland Act 1998 to block royal assent of the Bill, which would make it law in Scotland. This is the first time the UK Government has used these powers to intervene in law making in Scotland. It comes at a precarious time as the SNP makes plans for the Scottish people to reflect once again on whether their future lies in a United Kingdom.

Section 35 essentially acts as a ‘veto’. It allows a Secretary of State to intervene in cases where they have reasonable grounds to believe provisions in a bill before the Scottish Parliament would have an adverse effect on the operation of the law in areas reserved to Westminster.

Nicola Sturgeon has called the action a ‘direct attack on the institution of the Scottish Parliament’ whilst commentators worry that the SNP could use the resulting tension for making a broader argument for Scottish independence.

In a policy statement of reasons, the UK Government argues that the modification of the GRA 2004 by the Bill would have an adverse impact on equal opportunities, a reserved matter, through its inter-relationship with the Equality Act 2010.

The same paper identifies three overall areas of concern regarding adverse effects as being reasons for the Government's decision:

1. The impact of the creation of two parallel and very different regimes for issuing and interpreting GRCs within the UK;
2. The potential for fraudulent applications to be successful; and
3. The impacts of the operation of the Equality Act 2010 that result from changes to a person’s protected characteristic of sex for the purposes of the Equality Act 2010, and the expansion of the cohort of people able to obtain a GRC.

In response, Lord Falconer, a Labour peer who served as Lord Chancellor and Secretary of State for Justice under Tony Blair, has said he does not believe the policy statement of reasons to justify the use of section 35. He claims ‘the nuclear option of section 35 couldn’t reasonably be triggered by the administrative inconvenience’ and in the context of 525 additional applications, the vast majority of those are likely to be genuine. In support of his argument, Falconer points to the powers in the Bill enabling the Chief Constable to intervene when an applicant has had a sexual offences protection order application made against them, which will prevent a GRC from being issued.

In contrast, Lord Hope, a former Supreme Court judge, has called the reasons document a ‘devastating document for those who seek to preserve the Bill as it is at the moment’ and thinks it would be a mistake for the Scottish Government to go to court. Lord Hope said the Bill ‘most certainly does’ impact the Equality Act 2010. One issue he raises is the lowering of the minimum age to 16 and the effect it might have on single sex schools:

"That raises real questions in England as to whether they're facing a large number of people coming over the border to a single sex school with a certificate that doesn't have the safeguards which apply under the English system."

Although this might appear a disproportionate response given the likely number of 16 and 17-year old applicants attending single sex schools in England, the question for the courts will be whether this action does indeed have an adverse effect on the operation of the law in areas reserved to Westminster.  

What next?

A section 35 order immediately becomes and remains law under Schedule 7 of the Scotland Act 1998 unless annulled by a resolution of either House of Parliament. Whilst the Scottish Parliament cannot overturn a section 35 order, it could amend the Bill to avoid potential adverse effects on the operation of the law in areas reserved to Westminster, or else challenge the lawfulness of the UK Government’s decision by judicial review.

Nicola Sturgeon has said that the Scottish Government will ‘vigorously defend this legislation’ and the row will ‘inevitably end up in court’.

Should the Scottish Government decide to judicially review the decision, it is likely to argue that the Scottish Secretary lacked reasonable grounds for believing the Bill would have an adverse impact on how the law operates with respect to equal opportunities. The Court will then need to determine whether that decision was made lawfully or unlawfully. If the decision is found to be unlawful the section 35 order would cease to have any legal effect and the Bill could be presented for royal assent.

A version of this blog is also available on Lexis®PSL.

Further Information

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About the author

Katie Dean is a trainee solicitor at Kingsley Napley and is currently in her third seat with the Public Law team, having completed her second seat with the Employment team and her first seat with the Medical Negligence and Personal Injury team.