Recently, the U.K. government vetoed the Scottish Gender Recognition Bill, 2022 which sought to amend the Gender Recognition Act, of 2004. The veto power has been provided under Section 35 of the Scotland Act, 1998,¹ an Act by which the Scottish Parliament was established. Using the power provided in section 35 of the same Act, the Secretary of State of the United Kingdom holds the power to prohibit any Bill to be submitted for Royal Assent. The power can be used in cases where the Secretary of State has reasonable grounds to believe that the Bill would be incompatible with any international obligations or interest of defence or national security, or if the Secy. of State is of the belief that such Bill makes an adverse effect on these laws which will apply to reserved matters. Thus, by using this power for the first time, the Secretary of State has blocked the passage of gaining royal assent for the Scottish Gender Recognition Bill, 2022.

What is the Scottish Gender Recognition Bill, of 2022?

Over the last five years, Scotland was under high-stake debate and discussion on reforming their Gender recognition laws so as to bring their laws in conformity with international standards like Malta, Ireland, Iceland, etc. and to make it easier for trans people to change their legal sex. Finally, on the 3rd of March, 2022, Scotland introduced the bill in their Parliament with the aim to simplify the process of changing the acquired sex. ²

The Bill had gained a lot of support in the Scottish Parliament, and even amongst the trans population and other activists. The central aim of the Bill is to simplify the procedure and process of obtaining a gender recognition certificate (GRC) by an individual, which at present is highly intrusive, medicalized and bureaucratic.  Through this Bill, a system of self-declaration has been introduced for obtaining GRC, so once this process is implemented, there would be no need for a psychiatric diagnosis of gender dysphoria.

The Bill was introduced by Cabinet Secretary for Social Justice, Housing and Local Government, Shona Robinson. In her Parliamentary statement, while introducing the Bill, she mentioned that Trans people in Scotland are at risk of inequality, harassment and abuse just because of their lives, and these individuals are among the most marginalized people in society. Thus, as a society, it is our responsibility to protect and support minority groups against such harm. However, the current system that is in place for the last 18 years has remained highly intrusive and invasive, overly complex and demeaning with many trans people not applying for gender recognition because of these barriers. As a result of all of this, the Bill is introduced to ensure that the proposed reform makes the process simpler, more streamlined, more compassionate and less medicalised. Having GRC is extremely important for trans people because it legally recognizes their acquired gender and which can help them in obtaining a new birth certificate that shows the updated gender. Thus, this Bill is nothing but an attempt to ease the process of obtaining GRC by having such a system which is based on person ³

Key features of the Bill ⁶

Moving towards a self-declaration system

Under this new Bill, there is no need for medical evidence to be provided for obtaining a gender recognition certificate. As per clause 8A of the Bill, any person of either gender can submit an application to the Registrar General for Scotland with the intent to obtain a gender recognition certificate on the basis of living in the other gender of the person,for which , a person must be the age of 16, and the person should either be a Scottish resident or must have a Scottish Birth Register entry.  Once the application has been made, the applicant has to then live with the acquired gender for the grant of application.

No need to prove Gender Dysphoria

As per the Gender Recognition Act, 2004, for the determination of an application for a Gender Recognition Certificate, the panel responsible for granting the application will  have to satisfy that the applicant has or has had gender dysphoria. According to the 2004 Act, Gender Dysphoria means a disorder variously referred to as gender identity disorder and transsexualism.  Finding the validity of gender dysphoria  is  a necessity. Moreover, the 2004 Act also restricted the applications from people who are at least the age of 18 years. Nevertheless, this new Bill has reduced the age to 16 and there is no need to prove such gender Dysphoria or any other medical or psychiatric element.

Easiness in granting the application

Under the same Bill, Clause 8C deals with the provisions in which the Registrar would grant the certificate. So within that provision, the Registrar General would grant an application if the application includes a statutory declaration by the applicant that the applicant has fulfilled all the conditions mentioned above. Most importantly, the applicant has to declare that the applicant who is 16 or 17 years old has lived in the acquired gender throughout the period of six months ending with the day on which the application is made. In case the person is aged at least 19 years, then such an applicant has to show that he/she have lived in the acquired gender throughout the period of three months ending with the day on which the application is made. Other than this essential element, the applicant has to declare that they intend to continue to live in the acquired gender permanently and they do understand that it is an offence to knowingly make a statutory declaration under this section to provide any false material. Once all these declarations have been provided by the applicant, the certificate is then granted to the applicant.

Reducing the period of living in an acquired gender

Earlier as per the Gender Recognition Act, of 2004, an applicant has to be living in the acquired gender throughout the period of two years ending with the date on which the application is made. However, with this new Bill, this period has significantly reduced in order to process applications at a fast speed. Now, if an applicant is 16 or 17 years old, then he/she must have lived in the acquired gender for six months and if the applicant is at least 18 years old, then the applicant must have lived for the period of three months. Therefore, reducing the period from two years to 3 months and 6 months is a progressive move.

With these key elements, the Bill has been seen as a strong message towards making gender inclusive society where the onus is on the individual about choosing their gender rather than involving medical techniques or a psychiatric diagnosis to identify the gender. The Scottish government has called the day of the Bill passing by the parliament a historic day for equality. Similarly, LGBTQI+ campaigners have commented on this Bill has a “historic victory in the fight for equality that will transform the lives of trans people in Scotland” ⁴

Why is the UK government vetoed the Bill?

Even though the Parliament of Scotland has passed the Bill through its three stages, now the UK government has blocked the passage of the Bill from getting royal assent using its power under Section 35 of the Scotland Act, 1998. The Secretary of State has argued through its Policy Statement of Reasons that this Bill contains provisions which make modifications of laws in the reserved matters which would have an adverse effect on its operation. The first point highlighted by the Secretary of State is that through this Bill, two parallel and very different regimes for issuing and interpreting GRCs have been incorporated. It has been stated that the Bill does not purport to require that a Scottish GRC issued as per the provisions of the new Bill will have any legal effect other the Scotland. Due to this, it would be highly problematic because then a person in Scotland would have different gender and when such an individual would be in other parts of the U.K., it would have different gender. 

Another problem mentioned in the Statement of Reason is the procedural aspect. As per the new Bill, the age is decreased, the threshold of holding acquired gender is decreased, and even the requirement for a diagnosis of gender dysphoria is removed. Accordingly, it is mentioned that this will become a problem as there would be no clear limits on who is eligible to apply.  With such lenient guidelines, and even reducing the level of assurance as to the individuals’ likelihood of remaining committed to living in their acquired gender, such actions would increase the number of fraudulent cases of obtaining GRC for ulterior motives. Moreover, in the Statement, it is also mentioned that although criminal sanction is there to prevent false information, the statement provides that such safeguards are not sufficient to mitigate the risk of fraudulent and/or malign applications. As a result of these criticisms, followed by many others, the Secretary of State vetoed the Bill.

Conclusion

The current move by the UK has got a lot of condemnation for blocking the Bill to get royal assent. Scotland has favoured this Bill citing international practices and has held that this Bill is in tune with other countries who have brought laws to make gender recognition easy and simplified. The Gender Recognition Bill has passed through a lot of scrutinies and only then a decisive majority decision was taken. Overturning such a Bill is an intrusion into the constitutional principles of the law. The future of this law now depends on the court battle as the Scottish government is all set to challenge the UK parliament’s decision of blocking the Bill. Nicola Sturgeon has cleared the intent of the Scottish government that they will go to court to challenge the UK government’s decision. ⁵ All in All, the Bill functionally seemed to be a progressive law that protects the right of trans people and provide them with a safer option to obtain GRC without any kind of complexities. This Bill can act as a benchmark for other States to understand the sincere need of having such laws to promote equality for all.