You may have seen the coverage about the Scottish Parliament’s bill proposing changes to the process of obtaining a Gender Recognition Certificate ('GRC') in Scotland. 'The Bill' is the Gender Recognition Reform (Scotland) Bill and it was passed by the Scottish Parliament in December 2022. However, in order to become law it needs to receive Royal Assent.
So what does the Bill do, why have the UK Government intervened and what does this mean for employers?
The Bill proposes a new process to obtain a GRC. This certificate allows for a person's acquired gender to be legally recognised. Having a GRC therefore enables a person to update their birth certificate (if it was registered in the UK) to show their acquired gender, to get married in their acquired gender and to have their acquired gender on their death certificate.
The Bill would remove the requirement to have a medical diagnosis of gender dysphoria and reduce the amount of time someone has to have lived in their preferred gender from two years to three months (six months for those under the age of 18) before they can apply for a GRC. Trans people applying for the certificate will be required to make a statutory declaration that they are living as their preferred gender and intend to do so permanently. The Bill would also lower the age limit to apply for a certificate from 18 to 16 years old.
Scottish Social Justice Secretary, Shona Robinson has said "This Bill does not introduce any new rights for trans people. It is about simplifying and improving the process for a trans person to gain legal recognition, which has been a right for 18 years".
She went on to say "Our support for trans rights does not conflict with our continued strong commitment to uphold the rights and protections that women and girls currently have under the 2010 Equality Act. This Bill makes no changes to that Act."
On 16 January 2023, the Scottish Secretary, Alister Jack, confirmed the UK Government will block the passing of the Bill by invoking Section 35 of The Scotland Act 1998. This section allows a UK Secretary of State to prevent a bill getting Royal Assent if there are reasonable grounds to believe the bill would cause an adverse effect on legislation reserved to the UK Government. Section 35 has never been used since The Scotland Act came into force and many have described the use of it as a 'nuclear option'.
The UK Government have argued that the Bill would impede the operation of the Equality Act 2010, which is Great Britain's legal framework to protect the right of individuals and advance equality of opportunity for all.
The UK Government argue that the Bill's modification to the Gender Recognition Act 2004 would have the following adverse effects:
- Create two parallel and different regimes for issuing and interpreting GRCs within the UK. They state that the different regimes will have an impact on the operation of UK wide same-sex clubs or associations, the public sector equality duty and UK wide employers who have equal pay claims brought against them (as it would affect who can be used as a comparator).
- Removing safeguards from the 2004 Act could have an impact on the safety of women and girls due to an increased potential for fraudulent applications.
- Impacts on the operation of the Equality Act 2010 as having a GRC changes a person's protected characteristic of sex for the purpose of the Equality Act and therefore expands the category of people who will be regarded as women under the Equality Act.
The use of Section 35 means the Bill currently has no legal effect. A possible next step is for the Scottish Parliament to re-write the legislation and the UK Government to consider an amended version. However, Nicola Sturgeon (Scotland's First Minister) has already confirmed that her Government is likely to commence a legal challenge in response to the use of Section 35. It is highly likely this legal challenge will end up in a return to the Supreme Court, where two Supreme Court judges have already commented that they feel the Scottish Government do not have a strong legal case.
Why do UK wide Employers need to be paying attention to this topic?
The discussion around the proposed changes to the process for obtaining a GRC has led to a wider debate about transgender issues. The debate has highlighted struggles this marginalised group face on a daily basis as well as areas where there are competing rights.
Coverage of these issues is not new, and there has been discussion in recent years regarding the relationship between trans people's rights and women's rights, notably with the coverage of J.K Rowling's widely reported beliefs. Most recently in Scotland, a decision also had to be made about whether a trans woman would be held in a male or female prison, again bringing the topic into the public domain. Trans activists have commented that they feel they are becoming victims between the increasingly challenging relationship between the UK Government and Holyrood as this topic shapes up to be a 'political football' between the two Governments.
The inclusion of trans people is therefore a topical issue and raises questions about how best to offer support in the workplace and ensure that the needs of all employees are met. This can be a daunting issue to manage and it is a constantly evolving area.
At the heart of the debate are individuals and it is important to remember that there is not a one size fits all approach. Each situation is different and requires consideration on how best to support everyone involved. Employers should ensure they have up to date policies and train staff to be aware of the issues so they are able to address any concerns on this topic in a lawful manner.
Our experts are on hand to help you navigate this developing area and if you would like to discuss any of the issues raised in the update, please do get in touch.
Authored by Molly Fellows and Katherine Lynch