The Gender Recognition Reform (Scotland) Bill ("the Bill") had a high profile and bumpy ride through the Scottish Parliament, eventually being passed by 86 votes to 39 in the Scottish Parliament in December 2022. Within a few weeks however the Bill was blocked from receiving Royal Assent (becoming law) on the basis that it would conflict with UK wide protections set out in the Equality Act 2010. This was done by the Secretary of State for Scotland making an Order under section 35 of the Scotland Act 1998.
Section 35 can be used to prevent a piece of Scottish legislation from receiving Royal Assent where it makes modifications to the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of law as it applies to reserved matters. In the context of this case the reserved area at issue was that of Equal Opportunities, specifically the Equality Act 2010.
What did the Bill do?
The Bill proposed wide ranging reforms to the process of obtaining a Gender Recognition Certificate (GRC) in Scotland. The main changes included reducing the minimum age of applicants from 18 to 16 years; the requirement to have lived in the acquired gender was reduced from 2 years to 3 months (6 months for 16 and 17 year olds); and the requirement for a medical diagnosis of gender dysphoria was removed. The GRC provided under the Bill would not have effect in other parts of the UK unless specific provision was made by the respective governments for them to do so.
A section 35 Order is not a direct challenge to the changes made by a piece of legislation. According to the UK Government, the Order was used because of concerns about the risk of "significant complications" of having two different gender recognition schemes within the UK and the impact on the operation of the Equality Act 2010.
The Judicial Review
The Scottish Government's position was that this was improper use of section 35.
However, the challenge was unsuccessful. The Court did not accept the section 35 Order was made on the basis of a policy dispute and found that the Secretary of State had shown that the Bill modified the law as it relates to reserved matters. The Court held that the effect of the Bill was to amend the meaning of section 9 of the Gender Recognition Act 2004, which provides that once someone has a full GRC, their acquired gender becomes their gender 'for all purposes'. The Court ruled that: 'Since the whole purpose behind the Bill is to widen the category of those who may apply, and to simplify the overall process by which a certificate may be obtained, it cannot be asserted that the meaning overall of section 9 has not changed, looked at objectively.' As section 9 of the 2004 Act directly impacts on the protections under the Equality Act 2010 - in terms of how a person's gender is determined - the Court found the Secretary of State had shown that the Bill modified the law on reserved matters.
Where does that leave gender recognition?
The Scottish Government has confirmed that it will not appeal the Court of Session's judgment. That means that the provisions of the Bill will not become law and the process for obtaining a GRC under the Gender Recognition 2004 Act remain in force in Scotland unamended. However, the Scottish Government has not withdrawn the Bill, and it would be open to them to work with any future UK Government to have the section 35 Order lifted. Watch this space.
