January 16, 2023 - 7:00am

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? 

Nicola Sturgeon’s Government either wants the two jurisdictions to have separate systems or it wants a joint system. But it simply cannot demand to have a joint system effective throughout the UK which can be changed unilaterally without the input or democratic consent of the rest of the UK. The GRR Bill interferes with British democracy by attempting to change the operation of both the Gender Recognition Act and the Equality Act — which apply across the UK — without the consent of Parliament in Westminster. Nobody in the rest of the UK voted for these changes.

What’s more, even if this Bill only applied in Scotland and did not have wider implications, the UK Government would still be entitled to a say. Devolution is not secession: the constitutional settlement protected in the Scotland Act demands that the UK generally respects Holyrood’s ability to pass laws for its own people and that the Scottish Parliament respects that certain matters are reserved for Westminster. The Equality Act’s continued operation throughout the whole of the United Kingdom — including in Scotland — is within the purview of the UK Government.  

If this Bill changes the operation of the Equality Act, then the UK Government is entitled to use its powers under section 35 of the Scotland Act to prevent the law from being enacted. That is the constitutional settlement and both sides need to respect it. 

Devolution is not a bludgeon to be used by one party alone: it is an important democratic agreement and should not be undermined by unilateral interference into reserved areas. Sunak must stand up to the pressure from the north.

Michael Foran is a Senior Fellow at Policy Exchange and Lecturer in Public Law at the University of Glasgow

Michael Foran is Senior Fellow, Policy Exchange and Lecturer in Public Law, University of Glasgow