One of the fundamental flaws in the Scottish devolution settlement set up by Labour and radically expanded by the Tories is the ability for policy divergence in Scotland to impact on the rest of the UK. The Gender Recognition Reform Bill, on the cusp of being passed by the Scottish parliament, might prove an object lesson. The Bill overhauls the process by which a person obtains a gender recognition certificate (GRC). This is the document which recognises an applicant’s gender identity in place of their biological sex. For example, a male who identifies as female and acquires a GRC becomes female in the eyes of the law.
The Bill being pushed through Holyrood by Nicola Sturgeon’s government makes this process easier, faster and open to more people. It removes the current requirement for a medical diagnosis of gender dysphoria in favour of allowing applicants to declare their own gender. The Bill also cuts the waiting period for a GRC from two years to three months (plus a further three-month period of reflection) and lowers the minimum age at which a person can obtain one from 18 to 16.
Even if the Bill falls within the legal competence of the Scottish parliament, it interacts with policies and provisions that do not
On the face of it, the passage of this Bill should be of no concern to anyone outside Scotland. However, as equalities minister Kemi Badenoch has warned, there is no way to restrict the effects of the legislation to Scotland. The problem is that, even if the Bill falls within the legal competence of the Scottish parliament, it interacts with policies and provisions that do not. This means that, unless ministers successfully challenge the law as ultra vires, they will need to find a way of accommodating it. (They could, of course, refuse to accommodate it – but that would require No. 10 to have a backbone when all it has at the moment is Rishi Sunak.)
That is not as straightforward as it sounds. Consider passports and driving licences, both of which are reserved matters and are issued by UK government agencies. A situation in which someone is recognised as male under Scots law but carries UK identification documents that give their sex as female is surely untenable. Such a discrepancy could lead to confusion, undermine the integrity of these documents and cause distress to trans people.
Then there is the matter of cross-border recognition. Imagine a female obtains a GRC in Scotland and is recognised thereafter as a male. Now, let’s suppose this person gets a job in Manchester and goes to live there. Do they retain their new male legal status, or do they revert to female in the eyes of the law?
I have no legal education whatsoever, unless you count extensive viewing of My Cousin Vinny, but it seems possible that every inch the UK government moves in the direction of accommodating the Scottish law would take it an inch closer to a courtroom.
If HM Passport Office, an agency of the Home Office, agrees to issue passports that reflect a Scottish applicant’s GRC, does it open itself to a legal challenge from a similarly situated English applicant? After all, both are UK citizens applying for a central government document. Both might even enjoy the protected characteristic of ‘gender reassignment’ under the Equality Act 2010. And yet each is placed in a different lane of a two-track system. Perhaps this would be lawful, but it seems like an arrangement begging to be dragged before a succession of judges.
The same potential for legal challenge seems present in the case of our Scot who moves to Manchester. Could a public body lawfully recognise self-identified gender for some service users but not others? Again, even if the answer is ultimately yes, plenty of lawyers would no doubt fancy a crack at it. Whatever the outcome, this risks putting the courts – rather than MPs – in the driving seat on a subject of acute political sensitivity.
The law is one thing, but politics is another. Accepting the Scottish GRC would bring the government under pressure to adopt the same standard for people in England. There are some Tory MPs who would seize on it as an opportunity to revive May-era efforts to introduce similar legislation in England. That, in turn, would cause problems with a larger bloc of Tory MPs who have enough problems placating local members and voters without being asked their views on the definition of a woman.
While devolution may be useful in allowing different parts of the country to fashion their own policies in certain respects, it should be obvious that equalities is not one of them. Especially not when doing so could produce externalities that impact on reserved competencies and the political or legal status quo in the rest of the country. The Holyrood tail cannot be allowed to wag the Westminster dog.
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