The Gender Recognition Bill and Equality Law

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Communist Party executive committee STATEMENT March 2023

1 The GRR Bill was passed by the Scottish Parliament on 22 December, 2022. The Bill reforms the 2004 Gender Recognition Act (GRA) for Scotland only. It changes the process for obtaining a gender recognition certificate (GRC) for anyone born or ‘ordinarily resident’ in Scotland. It aims to change the basis on which people in Scotland can change their sex in law from one of a shared medical diagnosis to that of self- declaration alone (‘self-ID’) and lowers the qualifying age from 18 to 16.

2 On January 17 this year, the UK government used its powers under Section 35 of the 1998 Scotland Act to stop the Bill receiving Royal Assent. This power of veto can be used in circumstances where an item of Scottish parliamentary legislation is judged by the Secretary of State for Scotland to have an adverse impact on law in areas of policy (‘reserved matters’) for which the UK Parliament and government are solely or chiefly responsible. Similar provisions apply to the devolved parliaments of Wales and Northern Ireland.

3 The so-called Sewel Convention obliges the UK government to consult the devolved administrations when its own proposed legislation impacts on the powers and policies of the devolved parliaments. Ultimately, the UK Parliament can disregard refusals of consent from the Scottish, Welsh or Northern Ireland legislatures.

4 The Communist Party of Britain and its leadership bodies in Scotland and Wales believe that the current devolution settlement must be protected and improved. However, in the case of the GRR (Scotland) Bill, the intervention by the UK government was entirely predictable given the political struggle over Scotland’s constitutional status and the controversies over issues of sex and gender.

5 The flawed approach of the Scottish government over the Bill and its wider effects has been brought persistently to the attention of Scottish ministers over the past four years. During the Edinburgh parliament’s scrutiny of the Bill, serious problems were raised by a range of women’s and other civil society groups who asked for the Bill to be paused so these could be discussed and resolved, as well as by legal and policy experts and other organisations. Yet ministers consistently denied and dismissed the problems being raised.

6 Unfortunately, discussion around the GRR bill has now become so acrimonious and toxic as to obstruct meaningful and respectful debate. The SNP-Green government in Edinburgh’s action has been portrayed as part of their attempt to secure separation from the UK; the Westminster veto – while defending the constitutional status quo and the Equality and Scotland Acts – has been described as taking an opportunity to discredit the SNP and its separatist goal.

7 The Communist Party of Britain believes that the current system for transgender people to gain access to services and achieve safe and legal gender transition requires substantial resourcing. If the aim of this Bill is to make the lives of trans people easier, then it is a failure. The Communist Party supports the right of trans people to live free from discrimination and prejudice. This attempt to change the law does nothing for their access to health, medical, housing, advisory and other services sensitive to their needs.

8 For Communists, the main concerns are about how the GRR Bill (as devolved legislation) interacts with the operation of the 2010 Equality Act (as reserved legislation) across the UK. This is a complex area of law but the crux of the matter rests on two main things.

(i) ‘Gender recognition’ is both reserved and devolved

9 A system for allowing someone to change their legal sex has to work across Britain as a whole. This is because the legal term ‘sex’ is referred to in hundreds of pieces of legislation which are both reserved to Westminster and devolved to the Scottish Parliament. For this reason, when the Labour government decided to introduce the 2004 Gender Recognition Act it reached agreement with the devolved assemblies/ parliaments that the Westminster government would create a single legal framework for Britain as a whole. To make this possible, the Scottish Parliament passed the Sewel resolution granting consent for Westminster to legislate in devolved areas for this specific purpose.

10 These facts were known by the Scottish government and by civil servants before it embarked on going it alone in reforming the GRA in Scotland. It was always clear that a Scotland-only scheme would mean that Gender Recognition Certificates issued in Scotland would apply only to reserved areas of law. Anyone applying for and obtaining a GRC in Scotland under the new scheme could be sure of their rights in relation to devolved areas – such as the recording of births, deaths and marriages by the National Records of Scotland, or the Scottish NHS – but would have no idea where they stood in relation to reserved areas such as pensions, (most) social security benefits and areas covered by the Equality Act such as employment protection during pregnancy, maternity pay and other important rights.

11 Instead of resolving these issues, ideally in advance of introducing legislation, the Scottish government stuck to its position that the GRR bill had no effect at all on the operation of the Equality Act. They continue to claim it is an administrative change only and there is simply nothing to consider.

12 This is despite a legal judgement clarifying the matter, made on December 13, 2022 (For Women Scotland vs The Scottish Government). This ruling established that a GRC changes someone’s legal sex for all purposes under the 2010 Equality Act. Legal counsel for the Scottish government successfully argued this case in court. Despite this, Scottish ministers chose not to pause the Bill so that the implications of this important ruling could be understood before MSPs had their final vote on the Bill.

13 The face of the Bill may include wording that it ‘does not affect the operation of the 2010 Equality Act’ (a Labour amendment), but this is meaningless because by effect the Bill certainly does.

(ii) The GRR Bill means there would be different legal definitions of sex in Scotland and in England & Wales

14 The effect of the Bill is that the legal definition of a ‘man’ and a ‘woman’ and the people who are included in these categories will be different in Scotland than in England and Wales. In other words, there will be two different legal definitions of sex in operation within the UK. No-one knows how that will work in practice. It has never been examined. It is likely to mean that people with a Scottish GRC will have separate legal identities for different purposes.

15 The effect is to create legal chaos for service providers and organisations in the different countries of the UK and for UK- and Britain-wide organisations. The groups of people in sex-related categories will be entirely different in Scotland on one side and England and Wales on the other.

16 In particular, the UK Gender Recognition Act 2004 focuses on people with ‘gender dysphoria’ – their sexed body causes psychological distress such that medical/ surgical interventions are deemed necessary. They are the only group eligible for a GRC and thereby entitled to change their legal sex on their birth certificate.

17 The Scottish GRR Bill allows anyone over the age of 16 access to a GRC, with no medical requirement. Anyone is eligible who self-identifies into an ‘acquired gender’ and can provide fairly minimal evidence of living in this for at least three months is eligible. Sex offenders and those charged with sexual offences can apply, MSPs having voted down amendments to exclude them. The implications of self-ID as the sole requirement for access to single-sex spaces and facilities are serious when it comes to safeguarding women and children from predatory and abusive behaviour by men who can simply declare themselves to be women.

18 This reform could pose great difficulties for education institutions, sports organisations and other clubs and societies. They have to work out how to meet their legal duties under the 2010 Equality Act and make defensible decisions. They must balance conflicts of rights under the Equality Act and, if they are public sector bodies, fulfil the public sector equality duty and promote good relations between people with different ‘protected characteristics’ (which include ‘sex’ and ‘gender reassignment’). This is not a simple matter, and there are sure to be legal challenges. Navigating complex legislation while managing different legal definitions of sex which contain very different groups within them will not be easy.

19 When these questions were asked as the Bill went through the Edinburgh parliament, the Scottish government said it was up to the Equality and Human Rights Commission to draw up guidance. It refused the EHRC’s request for the Bill to be paused so these issues could be examined. Some argue these changes involve very small numbers of people and therefore the impact will be minimal. However, the wider context of the social transitioning of children in schools under government guidance puts that in doubt.

20 Meanwhile, the Welsh government has announced its intention to assist trans people to gain GRCs without a diagnosis of gender dysphoria; enhance their access to a full range of tailored services; and ‘ban all aspects’ of conversion practices. No Bill has yet been published and it is recognised that powers currently reserved to Westminster under the Wales Act may be necessary to carry out this programme in full. The UK central government has made clear it will veto any Welsh Bill which seeks to assume these reserved powers

21 The Welsh government also pledges to uphold women’s rights and spaces. Its LGBT Action Plan (2023) claims there is a ‘lack of evidence’ that trans-inclusion would have any adverse impact on women’s single-sex services and facilities and no evidence at all to justify a blanket exclusion of trans people from them. Instead, exclusion from single-sex services should be considered on a case-by-case basis as provided for in the 2010 Equality Act.

22 Heavily influenced by Stonewall rather than by a desire to boost the case for independence, the motivations of the Welsh government appear to be different in this fundamental respect from those of its Plaid Cymru partners and the SNP government in Scotland. Nonetheless, should it choose to go down the same constitutional cul-de-sac as the GRR Bill by attempting to provide for gender self-ID, the same opportunity will be missed to provide and improve services for trans people.

In summary and conclusion

  • The UK government’s veto of the GRR (Scotland) Bill was entirely predictable. The real issue here is self-ID and the impact of legislating for it.
  • If the aim of this Bill was to make the lives of trans people easier then it has not only been a failure; it is also proving to be counter- productive.
  • Anyone gaining a GRC under this Bill would have no certainty about the rights it confers. This is because of the fundamentally flawed approach taken by the Scottish government which, among other things, has meant that specific measures in its Bill have not won broad public support.
  • The real innovation of this Bill is to legislate for the self-ID of someone’s legal sex, embedding self-declared ‘gender identity’ in law. But when pursued to the exclusion of such considerations as the sex-based rights of women, and the fragmentation of equality legislation across Britain, it undermines the drive to build unity within and between the working class and the oppressed and disadvantaged groups in our society.
  • The Communist Party is the only political party with a coherent political analysis of sex and gender. Gender as an ideological construct should not be confused or conflated with the material reality of biological sex. Gender is the vehicle through which misogyny is enacted and normalised. Gender identity ideology is well- suited to the needs of the capitalist class, focusing as it does on individual as opposed to collective rights, enabling and supporting the super-exploitation of women.
  • For these reasons, the Communist Party rejects gender self-ID as the basis for sex- based entitlements in law to women’s single-sex rights, spaces and facilities. The Party will continue to oppose any proposed legislation – whether at Scottish, Welsh or British level – that seeks to enact such a provision.
  • We call for ‘sex’ as a protected characteristic under the 2010 Equality Act to be defined as ‘biological sex’.
  • At the same time, Communists are clear that efforts must continue to improve the resourcing of the current system for transgender people to access services and to transition legally, not just in Scotland but across Britain. Together with the defence and improvement of women’s sex-based services and facilities, this is part of the broader struggle for democratic rights, social justice and socialism.