Constitutional showdown looms over Scotland’s transgender bill

good morning There is a row between the UK and Scottish governments over the reform of the Gender Recognition Act. The Scottish Parliament last month passed a bill that seeks to make it easier for people to legally change their gender. There is a lot to be said about the political and policy implications of this, and I imagine the line will go on and on.

Today’s notes are on legal arguments, for which I am grateful for some Inside Politics read in the legal world for that help. All the remaining mistakes are mine. Please send me your feedback and anything I missed at my usual address.

I am against the law. . .

Rishi Sunak will deploy section 35 of the Scotland Act 1998, to prevent legislation passed by the Scottish parliament from receiving royal assent and becoming law, reports George Parker. This power has not been used before.

Section 35 allows the UK government to block legislation of the Scottish parliament from becoming law for two reasons (the relevant clause for our purposes is in thick):

(a) which the secretary of state has reasonable grounds to believe would be inconsistent with international obligations or the interests of national defense or security, or

(b) which makes a modification of the law applicable to the reserved matter and the secretary of state has reasonable grounds to believe will have an adverse effect on the operation of the law applicable to the reserved matter.,

In this case, it is the operation of legal equalities – which remains the reserved competence of the British government – which, according to three people familiar with the discussions in Downing Street, forms the legal basis for using Sunak section 35. A final decision is expected on Wednesday.

The Scottish Government, meanwhile, insists that the gender recognition reform (GRR) bill does not conflict with equality laws across the UK. Who is right? The short answer is “the court will decide”, but this is the best understanding of the question and the arguments on either side.

. . . Law wins?

The gender recognition reform bill (GRR) makes a number of changes to the operation of the Gender Recognition Act 2004, which covers the legal gender change process in England. As in the UK, if you want to change your legal gender, you must meet the following requirements:

• you are 18 or older

• you have been diagnosed with gender dysphoria in the UK

• you have lived as the gender you want to identify with for at least 2 years

• you are going to live this way for the rest of your life

If the GRR bill becomes law, in Scotland you will be able to change your legal gender if:

• you are 16 or 17 and have lived in the gender you want to be known for at least six months

• you are at least 18 years old and have lived in the gender you wish to identify with for at least three months

• you are going to live this way for the rest of your life

So the reform will allow people in Scotland to get a gender recognition certificate (GRC) – a document that legally recognizes a person’s gender – without a medical diagnosis.

Now, this is not necessarily a breach of UK equality law, for a number of reasons. The Equality Act 2010 sets out the following nine “protected characteristics” which are not illegal to discriminate against:

Taken together, the texts of the Gender Recognition Act 2004 and the Equality Act 2010 are unclear as to whether or not someone legally changes their gender on grounds of unlawful discrimination. Lawyers can and do disagree on this.

And for obvious reasons, you don’t have to complete the gender compensation process to be protected under UK equality law. If one of my employees told me that he was trans, and was planning to legally change his gender, and I was fired for that, that was more illegal than what he said. next they received their GRC.

So you could, in theory, make substantial changes to the administrative barriers to changing your legal gender without changing the operation of UK equality law. No matter how fast or slow the legal gender change process is, you have the right to receive the same protection and consideration before and after you receive a GRC. Changing your legal gender change process should not have a significant impact on UK equality law if – and this is the important “if” – your legal rights remain unchanged.

Changing how you are identified by HMRC, on your birth certificate and death certificate (the practical effect of changing your legal gender) is a change that has emotional meaning, but does not create new obligations under equality law, rather than changing the way HMRC refers to you from “Ms ” for “Ms” no.

There are also some special exceptions carved into the Equality Act that need to be noted. One specifically covers domestic violence shelters and shelters:

Providers can deliver separate services for men and women providing a combined service would not be effective.

Providers can deliver separate services for men and women in different ways or in different ways where providing a combined service is ineffective and it is not possible to properly provide these services rather than as separate services provided differently for each type. .

While there is more choice for charity in general, if the discrimination meets one of the following conditions:

(a) a proportionate means of achieving a legitimate aim, or

(b) for the purpose of preventing or compensating for losses related to protected characteristics.

So, again, there are many opportunities to reform the legal gender change process that will not affect the way the Equality Act works.

But there are two separate questions. The first is “is it theoretically possible to write many laws like Scottish GRR Bill that does not breach UK equality law? The answer to that is “yes”. The second question is “does the Scottish GRR bill succeed in doing this?” to which the answer is “maybe”.

One of the important changes is that the Court of the Outer House decided in December that the 2004 Act exercise change the legal type for all purposes apart of certain Exemptions contained in the Equality Act, something that has previously been up in the air.

That is important because there is no specific opt-out in the Equality Act for schools. Although there are no single-sex schools in the Scottish state sector and only a few in the private sector, it is unclear whether the Equality Act’s exemption for charitable work will apply to single-sex private schools. So, the legal rights and obligations of private schools in Scotland could differ from what they are now under equality law if the GRR bill receives royal assent.

Therefore it is not very important that the GRR bill includes the following lines:

For the avoidance of doubt, nothing in this Act amends the Equality Act 2010.

It is not the Equality Act that is reserved for Westminster. It is the law of equality as a whole. You can’t just say “yes, we’ll suspend the Equality Act” if your legislation covers areas where the Equality Act is silent. Areas where the Equality Act does not provide direct guidance, such as on single-sex schools, will ultimately have to be tested in court. “Should we go to court to settle this question?” it is, I say, a pretty big change for the operation of the parallel law, in creating a new area of ​​ambiguity.

Now, the Court of the Outer House is not the last word: the Inner House or the Supreme Court of England can finally look at the decision, declare that it is wrong, and that sex and gender are separate protected characteristics, regardless of your gender. . But unless or until that happens, the operation of the GRR Bill remains ambiguous enough that the UK government, at the very least, has a good legal argument that the bill interferes with protected matters.

Whether there is a good political argument, on the constitutional question and the battle with the SNP, is a different question. Chances are that the GRR regime is preferable to existing rules for changing your gender.

Now try this

I watched Arsenal beat Tottenham 2-0 to go eight points clear at the top of the league yesterday. So when I say new movie Warehousestarring Cate Blanchett as an author who faces a professional and personal crisis, there is the best thing I saw this week, I want to make it clear that this is very, very high praise.

As Raphael Abraham notes in his review, it’s early in the year to talk about the Oscars, but Blanchett will take some beating and this film will take some beating as one of the best of the year.

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