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17 January

The gender reform bill is about something broader than trans rights

How much can Scottish law diverge from the UK?

By John Oxley

The passage of the Scottish Gender Recognition Reform Bill has started a multi-dimensional scrap between Westminster and Holyrood. One aspect is the substantive changes of the act, and the debate around trans rights. Then there is a drier, more technical, but equally important constitutional conflict.

Though the act would only apply to Scotland the UK government feels that its effects would be felt beyond those borders. Differing gender recognition regimes within the United Kingdom would mean similar people being treated differently depending which jurisdiction they fall into, with implications for UK-wide law.

If the Scottish act comes into force, English and Welsh people would require a diagnosis of gender dysphoria to live as their assumed gender, while Scots would not. People between the ages of 16 and 18 would be able to legally change sex in Eyemouth but not nine miles down the coastal road in Berwick. Whether or not there were mutual recognition of the new Scottish gender recognition certificates, the act would give the sexes subtly different meanings each side of the border – with Scotland having a more expansive definition.

Any legislation which refers to “sex” would potentially operate differently in different parts of the country. The most obvious of these is the Equality Act 2010, which allows for single-sex spaces and exemptions from anti-discrimination law where there is a justifiable need to exclude or promote one sex. This becomes fraught when changing sex is different in each jurisdiction.

The SNP may be right to assert that the act doesn’t modify or amend the Equality Act, but it does impinge on its implementation. This was highlighted in the run-up to the bill’s passing in a report by the Equalities and Human Rights Commission, which highlighted that having different groups of people comprise the same sex either side of the border would impinge on reporting and monitoring.

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For example, for the purposes of equal pay reporting, a 17-year-old trans person in Derby would be considered their birth sex, but one in Dundee might have legally transitioned. This makes it far more complex to draw valid conclusions and adopt nationwide policies based on sex.

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Should the two parts of the country have different gender recognition regimes, this may in fact lead to more of a focus on biological and chromosomal differences. Case law holds that where a law refers to “sex” a holder of a gender recognition certificate will be considered their acquired sex except “where it is clear that ‘sex’ means biological sex”. To get around the ambiguity that would exist between who “sex” covers in the devolved administration, Westminster lawmakers may seek more exclusive terms in their laws.

This constitutional fight is only tangentially about the rights of trans people. It is about the extent to which Scotland can diverge from the rest of the UK, and what that means when that divergence interacts with UK-wide legal concepts. Both sides seem to be spoiling for the fight, creating a conflagration that draws in a contentious cultural and legal issue and the SNP’s campaign for independence.

[See also: Will the gender reform battle boost support for Scottish independence?]

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