Rishi Sunak said that he has “concerns” about the impact of Scotland’s Gender Recognition Reform Bill (GRR Bill); Keir Starmer has also now expressed similar concerns. The Bill, if it does what the Scottish Government intends it to do, could unilaterally change the operation of equality law throughout the United Kingdom. Respect for democracy will demand that the UK government has a say over that.
The Bill seeks to change the rules around how one might change one’s legal sex. Specifically, if enacted, it will remove the requirement to be diagnosed with gender dysphoria, shorten the wait time from two years to three months, and lower the age to include children from the age of sixteen. This will be available to anyone resident in Scotland or who was born in Scotland and now lives elsewhere.
Currently, it is not entirely clear whether a Gender Recognition Certificate (GRC) issued under this system will be valid throughout the United Kingdom. This is certainly the intention of the Scottish government. The policy memorandum for the Bill claims that “although the Bill changes the process by which legal gender recognition can be obtained and the criteria, it does not change the effects of a GRC and the rights and responsibilities which a person has on obtaining legal gender recognition”.
Despite the lack of clarity over how the law will operate, the argument is that the GRR Bill does not create a certificate that is distinct from the UK GRC. Instead, the legislation introduces a new method by which those resident or born in Scotland can apply for a UK GRC.
If that is correct, then the Scottish Parliament has just voted to change the operation of the law relating to legal sex changes for the entirety of the UK, without the consent of the UK Parliament. Leaving aside the potential effects this Bill could have on the reserved matter of equality law, there are also other issues of democratic legitimacy at play here.
In response to an earlier announcement from Westminster that the Government is considering intervening to limit the effect that this Bill will have on the Equality Act, Scottish ministers stated: “Any attempt by the UK Government to undermine the democratic will of the Scottish Parliament will be vigorously contested by the Scottish Government.” But what happens when the will of Holyrood is to change the operation of a system throughout the United Kingdom, including where it has no democratic mandate to govern?
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