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The Gender Recognition Reform (Scotland) Bill was passed in the Scottish Parliament back in December. The legislation intended to make the process for legally recognising a trans person’s gender more straightforward. However, by January, Westminster made its opposition clear by blocking the bill from receiving royal assent. The Scottish government has vowed to fight the veto, and the two are to now face a legal battle in the High Court.
The Gender Reform Bill has been called a “historic” piece of legislation and made a number of amendments to the Gender Recognition Act 2004, including the removal of the requirement of a diagnosis of gender dysphoria and the requirement for applicants to provide medical reports. It lowers the minimum application age from 18 to 16 and would allow applicants to apply directly to the Registrar General instead of having to go through the Gender Recognition Panel. Likewise, the former would also be required to submit an annual report on the number of Gender Recognition Certificates (GRCs) applications received and certificates issued.
Further, the legislation would reduce the amount of time required to live in one’s “acquired gender” from two years down to just three months, with a three-month reflection period also introduced. If applications are rejected, the Bill would also include regulations for reviews, and penalties for false information.
Another addition is the introduction of different types of Gender Recognition Certificates (GRCs) that may be issued depending on the circumstances, such as full GRCs and interim GRCs.
Comparatively, in the UK, the current legislation applied to the process of legally recognising a trans person’s gender has been identified by some as more arduous and potentially distressing for applicants. To obtain a GCR trans people must receive an assessment by a Gender Recognition Panel, as well as provide two medical reports confirming a gender dysphoria diagnosis alongside proof of them having lived in their gender for two years.
At the time of the bill passing, Vic Valentine of Scottish Trans Alliance said: “Trans people across Scotland will be feeling pleased and relieved that this bill has passed after many years of difficult public debate that has often felt like people are talking about us, and not to us.”
That said, Valentine also said that what the bill was about, had also been “lost in the noise,” and said that at its core, the legislation was “about the private, personal lives of trans people,” and about the discrimination and harassment they might face when navigating the job market, taking a “big step” in life with a partner, or entering marriage or a civil partnership. “Moments, milestones and memories that mean the world to us, but that make little impression and have no impact on others, unless they’re very close to us,” said Valentine.
In January, for the first time ever, the UK government evoked the use of its veto power under the Scotland Act 1998 to block the Gender Reform Bill. The move to initiate the veto has been called “undemocratic” by new First Minister of Scotland Humza Yousaf, and was despite cross-party support from Scottish parliamentarians. At the time, Scotland’s First Minister Nicola Sturgeon, who is currently braced for arrest related to party funding and finances, called it “a full frontal attack on Scottish democracy.”
Scottish Secretary Alister Jack cited the reason for the veto, as the bill risked violating aspects of UK-wide equalities legislation and “other reserved matters.” Further, Jack said that different systems of gender recognition north and south of the border would create “significant complications.” However, a specific breakdown was not provided.
Commenting on the broader implications of the veto, Conservative Scottish MP Jamie Greene, who voted in favour of the legislation, said that it has set off a “powder keg” between the two governments.
Elsewhere, Rape Crisis Scotland, a charity working to end sexual violence and abuse, commented that the legislation was based on years of research that has shown that it would greatly improve the experiences of trans people. Further, the organisation claimed that the legislation would protect trans people from the harms of a “stigmatising and unnecessarily difficult process to access legal paperwork.”
The Scottish government recently confirmed its intention to contest the government’s use of Section 35 and will proceed to launch an appeal to the High Court. This means that Humza Yousaf is embroiled in a legal battle just weeks into winning the election as SNP leader.
Social Justice Secretary Shirley-Anne Somerville launched the legal action citing that the use of Section 35 presents an “unprecedented challenge” to the Scottish Parliament’s ability to legislate on what it called “clearly devolved matters.” Further, Somerville said that the veto risks setting a “dangerous” constitutional precedent.
“In seeking to uphold the democratic will of the parliament and defend devolution, Scottish ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision,” Somerville said in the official order challenge statement.
The Social Justice Secretary outlined that the government had given “no advance warning” or the veto, and did not ask for amendments to the bill during the nine-month passage through Parliament, despite ministers offering to work with the government to do this. In fact, the Scottish government has claimed that these offers were “refused outright.”
Ultimately, the legal challenge is based on four counts: Jack made a “material error of law”, concerns related to the safeguards in the Bill were “irrelevant” to the Section 35 order, rendering his reasons for the veto “inadequate,” and thus the order “unlawful”.
Jack responded that the government would be “robustly” defending its decision and responses to the judicial review launch have been varied. Former SNP MSP Alex Neil, for example, has said the Scottish government does not “have a cat in hell’s chance of winning at the British Supreme Court.” Meanwhile, the leader of the Scottish Conservatives, Douglas Ross, said that Yousaf is “engineering constitutional division to appeal to his divided party and distract from his woeful start as first minister.”
Green MSP Maggie Chapman, meanwhile, said that the government has acted “disgracefully.” “This challenge is vital for the rights of trans people and for Scotland’s democracy. It should be supported by everyone who believes in human rights and devolution,” said Chapman and accused Westminster of spreading “disgraceful disinformation” about trans people: “The Tories are clearly acting in bad faith, and clearly have no intention of genuine discussion. They are using the Section 35 Order as a weapon in their cynical and hateful culture war against trans people and the wider LGBTQIA+ community.” She called GRR “a vital step” on the journey toward building a “better and more inclusive future.”
Elsewhere, with a different take, Scottish Labour’s equalities spokesperson, Paul O’Kane, criticised Westminster and Holyrood for their approach to the situation: “A fraught and expensive legal battle could have been avoided if both of our governments had been more willing to work in good faith to deliver a bill that works for everyone,” he said. Adding: “The real questions here won’t be answered in the courts – we need to focus on building consensus and public support for a way forward on reform.” Valentine, meanwhile, commented on how the application of such laws in other countries has only had positive implications.
The Scottish government’s lawyers for the case stated: “Having regard to the absence of any supporting evidence produced by the Secretary of State, and in the context of research, consultation and comparative information available to, and considered by, the Scottish Parliament during the Bill’s passage, the Secretary of State’s concerns about the operation of the Bill are irrational.”
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