THE UK Government has published the reasons why ministers believe gender reform legislation passed by Holyrood will have an “adverse effect” on UK law.
It has published a Statement of Reasons outlining why it is preventing the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent.
The document says it is “highly problematic both in principle and practically” for a citizen of the UK to have a different gender and legal sex depending upon where they happen to be within the UK, and which system of law applies to them.
It added: “It is practically and legally undesirable for all, including in particular the individual holder of the Gender Recognition Certificate (GRC), that a person will have one legal sex in Scotland and a different one in England, Wales and Northern Ireland.”
Here are some of the reasons which have been given.
Administration of taxes and benefits
The UK Government says there are a number of areas in which the “dual system” would have serious – and “potentially unmanageable” – consequences on the operation of the law.
“The most notable example is the administration of tax, benefit and state pensions which are managed by integrated systems across the UK that span reserved and devolved functions, operating for both the UK and Scottish governments,” the statement says.
“Existing IT infrastructure only allows one legal sex on any record and cannot change the marker for 16 to 17 year olds. Those responsible for these systems consider that it may be unmanageable, even with considerable time and expense, to build system capability to manage a dual identity for the same individual if someone’s legal sex could be different in Scots law and the law for England and Wales.”
Overseas citizens
The statement says the gender reform bill will create a “diverging system” for overseas citizens obtaining GRCs between Scotland and the rest of the UK.
“As the process in Scotland will allow for any overseas GRC holder to automatically obtain a Scottish GRC (unless it is manifestly contrary to public policy), this could potentially lead to overseas citizens in the UK (from countries or territories not on the approved list) favouring applying for Scottish GRCs in order to bypass the more rigorous process of applying to the panel on the UK standard track,” it says.
“Where such GRCs are then relied upon in relation to reserved matter areas – including under the 2010 Act – they will be a further aspect of the incoherent effect of the bill on the operation of the law as it applies to reserved matters.”
Protected characteristic of sex
Another reason given is that the change in how a GRC can be obtained in Scotland will “affect the circumstances in which a person can change their protected characteristic of sex under the 2010 Act” and “expands the category of people who will be regarded as women” under the 2010 Act.
The statement says: “It will no longer be a biological woman or a woman aged 18 or over who has a GRC as a result of having a diagnosed medical condition and has 2 years of lived experience; it will, in Scots law, be a biological woman or a person aged 16 or over who has self-identified as a woman for 6 (or 9 months).This is a substantive change to what a ‘man’ or ‘woman’ is for the purposes of the 2010 Act.”
Open to “abuse and malicious actors”
The Secretary of State for Scotland says he does not believe the bill has sufficient safeguards to “mitigate the risk of fraudulent and/or malign applications” and believes that the reformed system will be “open to abuse and malicious actors”.
“For example, as already noted, the required period for living in the acquired gender does not involve any evidence,” the statement said.
“This would undermine the operation of the bill’s designation of sex and its interrelation with sex as a protected characteristic in the 2010 Act, eroding confidence in the latter as a credible framework to protect the rights of individuals and advance equality of opportunity for all.”
Equal pay
The UK Government says issues here may arise “infrequently but could be significant”.
“A full GRC has the effect of changing the sex that a person has as a protected characteristic for the purposes of the 2010 Act, meaning that transgender women with a GRC are legally considered as female claimants and comparators, and transgender men as male claimants and comparators,” the statement says.
“Where an equal pay claim is brought by a claimant with a GRC, or a comparator with a GRC is used in the claim, an individual may have been treated as the opposite to their current legal sex for a significant proportion of their career with better or worse terms during this time than the comparator or claimant respectively.
“This may lead to the comparator test identifying an equal pay issue where one does not properly exist, or indeed failing to identify such an issue due to an individual’s status as the holder of a GRC.
“Where a claimant may deem a colleague to be the most appropriate comparator of the opposite sex, but that colleague then receives a GRC, the 2010 Act would not enable them to be cited as the comparator in the claim.
“This could prevent the comparator test from accurately identifying what might otherwise have been deemed unlawful.”
