The Gender Recognition Reform (Scotland) Bill is a
bill passed by the
Scottish Parliament. The bill seeks to amend the
Gender Recognition Act 2004
The Gender Recognition Act 2004 is an act of the Parliament of the United Kingdom that allows people who have gender dysphoria to change their legal gender. It came into effect on 4 April 2005.
Operation of the law
The Gender Recognition Ac ...
of the
Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
, making it simpler for people to change their
legal gender
Legal gender, or legal sex, is a sex or gender that is recognized under the law. Biological sex, sex reassignment and gender identity are used to determine legal gender. The details vary by jurisdiction.
History
In European societies, Roma ...
. On 17 January 2023, the
United Kingdom government
ga, Rialtas a Shoilse gd, Riaghaltas a Mhòrachd
, image = HM Government logo.svg
, image_size = 220px
, image2 = Royal Coat of Arms of the United Kingdom (HM Government).svg
, image_size2 = 180px
, caption = Royal Arms
, date_est ...
used section 35 of the
Scotland Act 1998
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was o ...
to block the bill from receiving
royal assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
, the first time section 35 has been used.
Background
In July 2002, the
European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
ruled in the ''Goodwin v United Kingdom'' case that a
trans person's inability to change the sex on their
birth certificate
A birth certificate is a vital record that documents the birth of a person. The term "birth certificate" can refer to either the original document certifying the circumstances of the birth or to a certified copy of or representation of the ensui ...
was a breach of their rights under
Article 8 (privacy) and
Article 12 (marriage) of the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
. Following this judgement, the UK government had to introduce new legislation to comply, which became law as the
Gender Recognition Act 2004
The Gender Recognition Act 2004 is an act of the Parliament of the United Kingdom that allows people who have gender dysphoria to change their legal gender. It came into effect on 4 April 2005.
Operation of the law
The Gender Recognition Ac ...
(GRA). To obtain a gender recognition certificate (GRC) under the GRA, an applicant must a) provide evidence of a diagnosis of
gender dysphoria; b) have lived in their "acquired gender" for two years; and c) make a
statutory declaration that they intend to live in the acquired gender until death.
In a June 2020 report, the
European Commission
The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative body ...
classified the legal procedures for gender recognition of 28 European countries into five categories based on the barriers to access. This placed the UK's Gender Recognition Act 2004 in the second from bottom category with "intrusive medical requirements" that lag behind international human rights standards. The procedures have also been described as costly, bureaucratic, and time-consuming for trans people, with successful applicants having to wait two years until they can change their legal gender.
The issue of gender recognition is
devolved
Devolution is the statutory delegation of powers from the central government of a sovereign state to govern at a subnational level, such as a regional or local level. It is a form of administrative decentralization. Devolved territories ...
in Scotland, which allows the Scottish parliament, if it wishes, to legislate for a different policy to that of England and Wales.
In 2004, the Scottish Parliament passed a
motion to consent to Westminster's GRA, so that a uniform system of gender recognition would be in place throughout the UK. A 2018 consultation in England and Wales found that a majority of the over 100,000 respondents were in favour of removing most of the requirements for a GRC; despite this, in 2020, the government in Westminster announced that it would not legislate to relax the requirements.
Separately, the Scottish government also consulted on reforming the law: an initial consultation on the principles of the bill which took place between November 2017 and March 2018 found a majority of the 15,500 respondents in favour of the bill;
and the second consultation on a draft bill, taking place between November 2019 and March 2020, also found majority support.
Legislative process
Draft stage
The
Scottish National Party (SNP) committed to "review and reform gender recognition law, so it's in line with international best practice for people who are Transgender" in their manifesto for the
2016 Scottish Parliament election, which they won. After the consultations ended, the Scottish government intended to introduce the bill to Parliament in 2020, but was forced by the
COVID-19 pandemic in Scotland to delay consideration until after the
2021 Scottish Parliament election
The 2021 Scottish Parliament election took place on 6 May 2021, under the provisions of the Scotland Act 1998. All 129 Members of the Scottish Parliament were elected in the sixth election since the parliament was re-established in 1999. The e ...
.
The 2021 election saw the SNP returned to government, this time in a coalition with the
Scottish Greens
The Scottish Greens (also known as the Scottish Green Party; gd, Pàrtaidh Uaine na h-Alba ; sco, Scots Green Pairtie) are a green political party in Scotland. The party has seven MSPs in the Scottish Parliament as of May 2021. As of the 2 ...
rather than as a
minority government; both parties featured the bill in their manifestos. The
Bute House Agreement Bute or BUTE may refer to:
People
* Marquess of Bute, a title in the Peerage of Great Britain; includes lists of baronets, earls and marquesses of Bute
* Lord of Bute, a title in medieval Scotland, including a list of lords
* Lucian Bute (born ...
between the two parties committed to introducing a Gender Recognition Reform Bill before the end of May 2022.
Stage 1
The bill was introduced on 2 March 2022, by Shona Robison, the Cabinet Secretary for Social Justice, Housing and Local Government. The bill lowers the age people can change their legal gender from 18 to 16, removes the requirement of a medical diagnosis of
gender dysphoria, and reduces the waiting time from two years to six months of living in an acquired gender. Also issued on the same day were a delegated powers memorandum, financial memorandum, policy memorandum, and statement of legislative competence.
The bill was subject to a mandatory consultation–its third–by the Scottish Parliament's Equalities, Human Rights and Civil Justice Committee. This committee was designated as the lead committee and ran thirteen evidence sessions. The Delegated Powers and Law Reform Committee of the Scottish Parliament, issued a report to the Equalities, Human Rights and Civil Justice Committee, on 16 May 2022, regarding the
delegated powers
The enumerated powers (also called expressed powers, explicit powers or delegated powers) of the United States Congress are the powers granted to the federal government of the United States by the United States Constitution. Most of these powers a ...
memorandum for the bill, which reported they were content with the delegated powers provisions contained within the bill.
The Finance and Public Administration Committee held a consultation on the financial memorandum, which received six responses, all of which were forwarded to the Equalities, Human Rights and Civil Justice Committee. The committee took no action based on the results of its consultation and recommended no changes to the financial memorandum.
The Stage 1 report, from the Equalities, Human Rights and Civil Justice Committee, recommended that the general principles be approved.
Stage 1 vote
The bill was voted on by the full parliament on 27 October 2022 and passed by a majority of 88 to 33, with 4 abstentions and 4 members not voting.
Stage 2
A number of amendments were proposed made to the bill at Stage 2, the majority of which were not passed. The Finance and Public Administration Committee published an updated financial memorandum on 7 December 2022 on the bill and noted the updates at its meeting on 13 December 2022.
Stage 3
The bill was heard at Stage 3 on 20–21 December 2022 for amendments to the bill. The final debate and vote was held on 22 December 2022.
Equalities, Human Rights and Civil Justice Committee
On 19 December 2022, the day before the Stage 3 debate began, the Equalities, Human Rights and Civil Justice Committee held an evidence session on the bill. They heard from two
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and security, develop friendly relations among nations, achieve international cooperation, and be a centre for harmoniz ...
representatives, Victor Madrigal-Borloz, an expert on
gender identity
Gender identity is the personal sense of one's own gender. Gender identity can correlate with a person's assigned sex or can differ from it. In most individuals, the various biological determinants of sex are congruent, and consistent with the ...
and
, and Reem Alsalem,
United Nations Special Rapporteur on Violence Against Women. Madrigal-Borloz described the Scottish bill as a "significant step forward", while Alsalem said it "would potentially open the door for violent males who identify as men to abuse the process of acquiring a gender certificate and the rights that are associated with it", a view that was disputed by Madrigal-Borloz, who said it would bring Scotland in line with international human right standards.
Stage 3 vote
The bill was voted on by the full parliament on 22 December 2022 and passed by a majority of 86 to 39, with 0 abstentions and 4 members not voting. The announcement of the result was accompanied by cheers from supporters in the chamber, and shouts of "shame on you" from protesters in the public gallery.
Royal assent
On 16 January 2023, Scotland Secretary
Alister Jack
Alister William Jack (born 7 July 1963) is a British politician serving as Secretary of State for Scotland since 2019. A member of the Scottish Conservatives, he has been the Member of Parliament (MP) for Dumfries and Galloway since 2017.
Ear ...
announced that the he would make an order under section 35 of the
Scotland Act 1998
The Scotland Act 1998 (c. 46) is an Act of the Parliament of the United Kingdom which legislated for the establishment of the devolved Scottish Parliament with tax varying powers and the Scottish Government (then Scottish Executive). It was o ...
, which would prevent the bill from proceeding to
royal assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...
. Jack cited concerns that the bill would adversely impact the UK-wide
Equality Act 2010
The Equality Act 2010 is an Act of Parliament of the United Kingdom passed during the Brown ministry with the primary purpose of consolidating, updating and supplementing the numerous prior Acts and Regulations, that formed the basis of anti-d ...
as the reason for the tabling of the motion before the Westminster Parliament; equal opportunities are a reserved matter under the Scotland Act.
The order using the negative procedure was made on 17 January 2023 and entered into force on the next day. The negative procedure means that the order is in force unless either house of Parliament votes to disagree with the order within 40 days. The final day to vote a disagreement was 27 February 2023. This was the first time royal assent was refused to a bill passed by the Scottish Parliament since its creation in 1999. As similar powers regarding the
Senedd and
Northern Ireland Assembly have never been used, this is the first post-legislative veto of a bill since
Queen Anne refused assent to the
Scottish Militia Bill
The Scottish Militia Bill 1708 (known formerly as the Scotch Militia Bill) was a bill that was passed by the House of Commons and House of Lords of the Parliament of Great Britain in early 1708. However, on 11 March 1708, Queen Anne withheld ro ...
in 1708. On 17 January 2023, Jack made a formal statement to the
House of Commons
The House of Commons is the name for the elected lower house of the bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of parliament. T ...
that he was using section 35 of the Scotland Act and set out his reasons for doing so. On 18 January the statement of Jack that was made in the Commons was presented and debated in the
House of Lords
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
without a formal vote on the matter.
On 17 January 2023,
Stephen Flynn the SNP leader at Westminster requested and was granted an emergency debate on the use of the Section 35 order. The debate was on the question "This House has considered the Government’s decision to use section 35 of the Scotland Act 1998 with regard to the Gender Recognition Reform (Scotland) Bill." The debate lasted for two hours and the house voted 318 to 71 in favour of the UK government position that the house had considered the matter.
On 24 January 2023, Flynn tabled a
Prayer
Prayer is an invocation or act that seeks to activate a rapport with an object of worship through deliberate communication. In the narrow sense, the term refers to an act of supplication or intercession directed towards a deity or a deified ...
against the section 35 Order which was worded as follows: “That a humble address be addressed to His Majesty praying that The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 of 17 January 2023, a copy of which is this House was presented on January 17, 2023, be annulled.”
Opinion on the bill
Support
The bill was supported by
feminist,
LGBT
' is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.
The LGBT term ...
, and human rights campaign organisations such as
Amnesty International,
Stonewall,
Rape Crisis Scotland,
Equality Network,
Engender,
Scottish Trans Alliance, and
Scottish Women's Aid.
The vast majority of SNP and
Scottish Labour parliamentarians, as well as all Scottish Green and
Scottish Liberal Democrat MSPs supported the bill, as did three of the
Scottish Conservative
The Scottish Conservative & Unionist Party ( gd, Pàrtaidh Tòraidheach na h-Alba, sco, Scots Tory an Unionist Pairty), often known simply as the Scottish Conservatives and colloquially as the Scottish Tories, is a centre-right political par ...
members.
The bill is similar to
the one adopted in the
Republic of Ireland
Ireland ( ga, Éire ), also known as the Republic of Ireland (), is a country in north-western Europe consisting of 26 of the 32 Counties of Ireland, counties of the island of Ireland. The capital and largest city is Dublin, on the eastern ...
. In
Northern Ireland
Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
, the bill was supported by
Sinn Féin
Sinn Féin ( , ; en, " eOurselves") is an Irish republican and democratic socialist political party active throughout both the Republic of Ireland and Northern Ireland.
The original Sinn Féin organisation was founded in 1905 by Arthur G ...
, the
Alliance Party, and the
Social Democratic and Labour Party
The Social Democratic and Labour Party (SDLP) ( ga, Páirtí Sóisialta Daonlathach an Lucht Oibre) is a social-democratic and Irish nationalist political party in Northern Ireland. The SDLP currently has eight members in the Northern Ireland ...
, whose politicians and MPs raised the possibility of adopting a similar bill.
Opposition
The bill was opposed by the Scottish Conservatives,
the
LGB Alliance
The LGB Alliance is a British advocacy group founded in the UK in 2019, in opposition to the policies of LGBT rights charity Stonewall on transgender issues. Its founders were Bev Jackson, Kate Harris, Allison Bailey, Malcolm Clark and Ann S ...
,
For Women Scotland, Fair Play for Women, and the Catholic
Bishops' Conference of Scotland. Nine SNP members voted against the bill at stage 3, which was reported in
Euronews as "the biggest rebellion against the government by its own party in the last 15 years". The
Minister for Community Safety, the SNP's
Ash Regan, resigned before the Stage 2 vote, saying she was concerned the bill could have "negative implications for the safety and dignity of women and girls".
Opinion polls
A January 2022 poll commissioned for the
BBC #REDIRECT BBC #REDIRECT BBC
Here i going to introduce about the best teacher of my life b BALAJI sir. He is the precious gift that I got befor 2yrs . How has helped and thought all the concept and made my success in the 10th board exam. ...
...
, found 57% of Scots supported making it easier to obtain a Gender Recognition Certificate; a majority opposed reducing the age for this from 18 to 16. The same poll found that over 40% of people supported self-identification, compared to 37% against it. A 2023
'' found that two thirds of Scottish voters opposed key aspects of the bill, particularly those relating the lowering of the minimum age for applying for a GRC.
Soon after the passage of the bill, academic commentary began to moot the possibility of an invocation of section 35 of the
to block the bill. On 21 December 2022, Dr Michael Foran, a lecturer in public law at the
, floated the idea that the bill could be blocked as it infringed on the operation of reserved matters. On 23 December 2022, Prime Minister
said that it would be "completely reasonable" for the United Kingdom government to block the bill, citing concerns for "women and children's safety". On 16 January 2023, in response to continued reports that the government was planning to block the bill, Scotland's first minister
called the prospect an "outrage", and stated the UK government was using transgender people as a "political weapon". Following Jack's announcement in the
that the bill would be blocked, Sturgeon said that the dispute would "inevitably end up in court" and that the Scottish government would "vigorously defend" the bill.
, suggested that gender recognition certificates and associated government documents would no longer be recognised in England and Wales if they were from places "where there is a clear indication that the country now no longer has a system at least as rigorous as those in the Gender Recognition Act 2004."
On 17 January 2023, the Westminster government released a policy statement on their decision to invoke Section 35. In the statement they set out three primary reasons why they believed the Scottish bill impinged upon reserved matters: firstly, a potential impact on provision of single-sex services authorised under the
as a result of creating "two parallel and very different regimes" for issuing gender recognition certificates; secondly, a potential increased risk of fraudulent applications; thirdly, potential impacts on the operation of the Equality Act 2010.
and Kemi Badenoch were invited by the Scottish Parliament's Equalities, Human Rights and Civil Justice Committee to give evidence about their decision to block the bill; both declined to attend.
defended the legality of the UK government's decision and said that the possibility of success of a legal challenge against the decision by the Scottish Government was "very low". Former Labour shadow attorney general
, also defended the legality of the government's decision. Former Labour Lord Chancellor
, and Colin Macfarlane, the LGBTQ+ rights campaign's Scotland director, said by reference to
, the legislation that had prohibited the "promotion of homosexuality" by local authorities, Sunak was risking "re-toxifying" his government's record on LGBTQ+ rights and introducing "an effective trans travel ban". Kelley and Macfarlane were quoted as saying "the UK government sees trans people as a threat to be contained, not citizens to be respected." A Cabinet Office spokesperson responded by saying that trans people "have not and will not be banned" from entering the UK.
in blocking the bill in the UK. Some who were
, with one being quoted as saying: "Now, I understand that independence is the only way to achieve