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LGBT+ History Month: The Gender Recognition Reform Bill and the Westminster Veto

Posted on 23 February 2023

Six years after it was first proposed in Holyrood, the Gender Recognition Reform (Scotland) Bill was passed by the Scottish Parliament on 22 December 2022. Less than a month later, on 17 January 2023, the Bill was prevented from reaching Royal Assent by the UK Government at Westminster.

The events surrounding the Bill have been widely publicised, sparking furious debate online and large protests outside both Westminster and Holyrood. With the recent news of Scottish First Minister Nicola Sturgeon's resignation, it is likely the Bill will come under even more scrutiny.

The legislation behind the Bill, and the UK Government's power to veto it, is undoubtedly complex and has caused much confusion within an already highly-polarised debate. Below, we set out the key legal issues underpinning the Bill and its recent journey to Westminster, and look at why the Bill has become such a sticking point in both the argument for Scottish independence, and the "culture war" in UK society today.

The Law: Explained

Transgender rights in the UK: History to the Bill

Gender recognition is the legal process by which a person's affirmed or acquired gender is given legal recognition by their obtaining a Gender Recognition Certificate ("GRC"). The first wide-reaching piece of trans-focused legislation, the Gender Recognition Act, was introduced in the UK in 2004.

Under the 2004 Act, transgender individuals can apply for a GRC to acquire full legal gender recognition and new birth certificates. The applications are determined by a Gender Recognition Panel, which grants the application if satisfied that the applicant: i) is at least 18 years old; ii) has had a medical diagnosis of "gender dysphoria" (which in turn requires two medical reports from a GP and a gender specialist to confirm the diagnosis); iii) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made; and iv) intends to continue to live in the acquired gender until death.

What does The Bill actually say?

The Scottish Reform Bill would amend the 2004 Act to introduce new criteria for applicants who wish to obtain a GRC under Scots law.

The Bill would remove the requirement for an applicant to have a diagnosis of gender dysphoria, and with it would remove the requirement for medical evidence. It would also include reducing the minimum age a person can apply for a GRC from 18 to 16, and remove the Gender Recognition Panel from the process. Instead applications would be made to the Registrar General for Scotland.

Furthermore, the Bill would reduce the period for which an applicant must have lived in their acquired gender from two years to three months; introducing a mandatory three-month reflection period and a requirement for the applicant to confirm at the end of that period that they wish to proceed. A new duty would be placed on the Registrar General to report, on an annual basis, the number of applications for GRCs made, and the number of certificates granted. It would also become a criminal offence to make a false statutory declaration or false application.

The Westminster veto – Section 35

The Bill was passed in Holyrood by 86 votes to 39. Due to the way power is shared amongst the four countries in the UK, Westminster still has the power to prevent certain bills reaching Royal Assent. UK devolution – the delegation of power from Westminster to the governments of Scotland, Wales and Northern Ireland – is at the heart of the Scotland Act 1998, as is what has been referred to as the "nuclear option" of Section 35.

Section 35 gives the Secretary of State for Scotland (currently Alistair Jack) the power to intervene in certain circumstances where "he or she has reasonable grounds to believe the Bill would have an adverse effect on the operation of the law as it applies to reserved matters."

It is this section of the Scotland Act which gave the Government the power to veto the Bill and prevent it becoming law. In his statement released on 17 January 2023, Alistair Jack argued the Bill would create "2 parallel and very different regimes for issuing and interpreting GRCs regimes across the UK".

Elaborating on this point, the Secretary of State for Scotland argued "these adverse effects include, but are not limited to, the examples of impacts on the operation of the Equality Act 2010" with examples being single-sex clubs or associations having different membership in different parts of the UK and a UK wide employer having employees who could not use a colleague as a comparator in an equal pay claim if it were brought in Scotland, but could do so in England (and vice versa)."

Why is the Westminster veto so contentious?

Scottish nationalists have argued the move is yet another attempt for Westminster to deny the Scottish Parliament, and in turn its people, the freedom to govern itself and decide its own laws.

The phrase "nuclear option" has been used frequently over the last month or so, due to the fact that Section 35 has never previously been used in the history of UK devolution. Nicola Sturgeon stated the move was "an attack on the institution of the Scottish Parliament," and that it made the next election in Scotland a "de facto referendum on Scottish independence."

Certainly, there have been questions raised as to "Why now? Why this Bill?" Whilst the official Government statement explains its choice to veto as a purely legal and technical issue, transgender activists and other allies of the Bill contend that the move is laced with transphobic sentiment – part of a move to stoke the "culture war" in the lead up to the next general election.

Opponents to the Bill argue that by making it easier to apply for a GRC, the Bill would put vulnerable cisgender women in women-only spaces and facilities such as prisons, hospital wards, crisis centres, at risk. However, it should be noted the Bill would have brought Scotland in line in with similar Bills having already been endorsed by the United Nations and adopted by 30 countries, including Canada, Australia, New Zealand, Ireland and most of the United States.

In its statement, LGBTQIA+ charity Stonewall said that stopping the Bill "treats trans people as a threat to be contained, not citizens to be respected." Not having to submit to a medical diagnosis would have been a powerful and significant step – challenging the notion that there is something "medically wrong" with transgender individuals.

Potentially the only agreed aspect of the debate is the uncertainty of how things will progress from here. Before her resignation, Nicola Sturgeon had made it clear her government will challenge the Westminster veto decision in court. However, with a new First Minister yet to be decided, it is likely the future of transgender rights may once again be put on the backbench for the time being.

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