UK government looking to block Scotland’s Gender Recognition Reform Bill - what has Cabinet and SNP said?

The UK government has said it will look to block Scotland’s new Gender Recognition Reform Bill with never-before-used powers.

Holyrood passed the bill by a margin of 86 votes to 39 on Thursday, which will make it easier for trans people to obtain a gender recognition certificate (GRC) by removing the requirement for a medical diagnosis of gender dysphoria. It also lowers the age of consent from 18 to 16.

Opponents of the legislation fear that it will impact on the Equality Act, particularly in relation to the exemption which allow for trans people to be excluded from single sex spaces in some circumstances. The bill, the Scottish Government says, will have no impact on the exemptions.

In the hours after the bill Scottish Secretary Alister Jack said his office would look at what could be done to stop the Bill, including invoking section 35 of the Scotland Act – which provides an effective veto if legislation will have an impact on reserved matters. Under UK law, the government can apply to have Scottish laws struck if they come into conflict with nationwide equalities legislation. This power has not been used before.

UK equalities minister Kemi Badenoch also said the government was “now looking at provisions that can prompt reconsideration” of the legislation. In comments that confirm the likelihood of the Bill ending up in the courts, Scottish Social Justice Secretary Shona Robison promised to defend the legislation.

“The bill as passed is absolutely within legislative competence and of course was backed by an overwhelming majority with support from all parties,” she said on BBC Radio Scotland on Friday. “I think any attempt by the UK Government to undermine what is, after all, the democratic will of the Scottish Parliament, it will be vigorously contested by the Scottish government.”

What is the Gender Recognition Reform bill?

The Gender Recognition Act is a law in Scotland which allows trans men and trans women to legally change their sex on their birth certificate. The law was celebrated by LGBTQ+ campaigners when it was introduced in 2004.

However, it has also been criticised since the introduction of the law and process, due its relatively difficult to access and waiting period of two years. The process also heavily relies upon psychiatric analysis and physical, medical transition.

As a result of this criticism, the Scottish Government launched consultation with groups and individuals to discuss how the process could be simplified. Simplified identification transition processes have already been implemented in European countries such as Iceland, Ireland and Malta.

Changes to the original act would include lowering the age of consent to legally change sex from 18 to 16. It would also remove the need for a medical diagnosis of gender dysmorphia.

After having gone through the consultation process, the Scottish Government introduced the GRA Reform Bill on 3 March 2022. First stage debates on the bill began on 27 October - the Scottish Government voted to back the bill into stage two by 88 votes to 33, with four abstentions.

What is the criticism of the reforms?

The topic of simplifying the process of changing sex on a birth certificate has become a controversial topic within Scottish politics. ‘Gender critical’ organisations and individuals have protested heavily against the introduction of the reforms.

The group For Women Scotland has argued that the reforms would harm biological women, and the safe spaces created for them. This is due to the simplifying of the process to legally change sex without going through a physical transition.

The group said; “It is our view that the Government’s development and understanding of the Bill is flawed, evidence from women’s groups has not been given sufficient, if any, consideration and if it passes into law the impact felt by women and children will be devastating.”

The SNP’s own Joanna Cherry has also spoken out against her party’s plans to simplify the process. The former SNP frontbencher has deflected accusations that she is transphobic, saying that there has been a “big dose of misogyny” within the GRA reform consultations.

In reference to the proposed removal of the need for a physical transition, Cherry added that “women don’t have penises”, saying that this was an “undeniable biological fact”.

Many gender critical voices have also raised the argument that reform of the GRA puts women at risk of abuse. For example, masculine-presenting trans women being able to access women-only spaces, such as bathrooms, would make biological women feel unsafe and lead to easier access to abuse.

One of the most prominent gender critical voices in recent years has been Harry Potter author JK Rowling. The author recently shared an image of herself on Twitter wearing a t-shirt which described Sturgeon as a “destroyer of women’s rights”.

What has Nicola Sturgeon said about GRA Reform?

The First Minister has been clear that as leader of the SNP, she supports the reforms and making the process easier for trans people to legally change their sex. Speaking about the topic, Sturgeon said: “I am a lifelong feminist, a feminist to my fingertips. But I also think it’s really important that we protect and enhance the rights of trans people, one of the most stigmatised minorities in our society.

“And I do not believe that the rights of women and the rights of trans people need be in conflict.”

The bill has also gained support from LGBTQ+ campaigners, including campaign group Scottish Trans. Of the bill, the group said: “Scottish Trans supports these reforms, and believes they will have a marked impact on the lives of trans men and women in Scotland, who currently have to spend large amounts of time and money on a difficult, bureaucratic, and unfair process just to have the way they live recognised on some of their records.

“Whilst an important step forward, the reforms proposed would still see Scotland with a gender recognition law that is far from world-leading. Other countries have been significantly more ambitious in changing their laws to ensure that all trans people can be respected and recognised as who they are.”

Other parties within the Scottish Parliament have also backed the bill. The Scottish Greens have described the reforms as “a crucial step for equality”.

After the Scottish Parliament voted to back the bill, Scottish Greens Equalities spokesperson, Maggie Chapman MSP said: “This is a crucial step for equality and I am delighted that we have taken a big leap towards delivering it. Trans rights are human rights and I am proud that our parliament has voted to put Scotland at the forefront of equality in the UK.

“This Bill has been targeted by a disgraceful tsunami of disinformation and scaremongering, and a heart-breaking moral panic that has been manufactured and disseminated by a small but vocal number of people. Self-identification is a crucial reform. It is a key part of the Bute House Agreement that the Scottish Greens negotiated with the Scottish Government. But it is only one part of the change that is needed.”