Includability Ambassador Tate Smith protested the decision to block the bill which would have made it easier for Scottish trans people to obtain gender recognition certificates.
In January, the UK government has said it will block legislation that aims to make it easier for people in Scotland to change their legally recognised gender.
MSPs in the Scottish parliament voted in December to pass the Gender Recognition Bill by 86 votes to 39 after years of consultation and debate.
The UK government announced it would use Section 35 of the Scotland Act 1998 for the first time to halt the Gender Recognition Reform(GRR) bill after taking legal advice. Such an order overrides the autonomy of the Scottish parliament and stops the bill before it can reach royal assent.
If the bill was enacted, Scotland would be the first part of the UK to introduce a self-identification system for people who want to obtain a GRC (Gender Recognition Certificate) in order to change gender – a system now adopted in many European countries.
Includability Ambassador, Tate Smith is a trans rights activist and joined a protest at Downing Street organised by London Trans Pride when the blocking of the GRR bill was announced. He said:
“Trans people can’t be erased and blocking this bill has much larger implications. It is erasing the identity of Scottish trans people and the identity of other trans people coming into the UK from other countries that do have a Gender Recognition Certificate. We won’t tolerate it.
“Trans rights are human rights. Every week there seems to be a new negative news story surrounding trans people.”
What is the current system?
At present, anyone wishing to legally change gender apply to a UK gender recognition panel and typically must present a diagnosis of gender dysphoria.
This is defined by the NHS as being caused by a "mismatch" between their biological sex (whether they were born physically male or female) and their gender identity (the way in which they see and describe themselves).
Two medical reports must also be provided, a medical specialist detailing their diagnosis and another listing any treatment or surgery they may have undergone to change their physical characteristics.
Applicants must also prove they have lived for at least two years in their ‘affirmed gender’ and swear an oath that they intend to continue living in this gender for the rest of their live.
What are the proposed changes?
The Scottish government plans would see applications handled by the Registrar General for Scotland, rather than the UK panel where no diagnosis or medical reports would be required, and the period in which applicants need to have lived in their acquired gender would be cut to three months.
Trans rights campaigners argue the current process is too difficult and invasive, and causes distress to a “marginalised and vulnerable minority group”.
One of the most controversial proposals is to lower the minimum age that someone can apply from 18 to 16 - although 16 and 17-year-olds would need to have lived as their acquired gender for six months rather than three.
Anyone wanting to change their legal gender will still need to swear an oath about remaining in this gender for life - with it being a criminal offence to make a false declaration or application - and there would be a three-month "reflection period" before a certificate was issued.
Why did Rishi Sunak’s government block the trans rights bill?
Secretary of State for Scotland, Alister Jack can stop a Holyrood bill from becoming law if they think it would modify laws reserved to Westminster - specifically how the Equality Act 2010 was applied - and have an “adverse effect” on how those laws apply.
He said in a statement:
“After thorough and careful consideration of all the relevant advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation.
“Transgender people who are going through the process to change their legal sex deserve our respect, support and understanding. My decision today is about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters.
“I have not taken this decision lightly. The Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales. I have concluded, therefore, that this [Enacting Section 35 of Scotland Act 1998] is the necessary and correct course of action.
“If the Scottish Government chooses to bring an amended Bill back for reconsideration in the Scottish Parliament, I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation.
There were four reasons given for enacting the S35 order as to where GRR would infringe the Equality Act 2010.
- Scottish GRC will only be recognised in Scotland leading to administrative difficulties for the administration of benefits.
- Increased risk of fraudulent applications. The process is easier so the risk of fraudulent or malign applications is increased.
- Concerns about “bad actors” being able to get a GRC and then try to circumvent safe space exclusions set up legitimately under the Equality Act.
- The ability of 16- and 17-year-olds to obtain GRCs and access single sex schools.
Why did the timing of the GRR decision matter?
The decision to block Scotland’s GRR bill came one day after an initial breakthrough for transgender rights as a new law to ban all forms of conversion therapy in England and Wales will include practices aimed at transgender people.
The move came after trans and non-binary people were initially excluded from plans to ban conversion therapy practices in July last year. It led to more than 100 LGBT+ groups withdrawing from prominent government conferences celebrating LGBT+ rights.
Tate says there was barely any time to celebrate the news before the government had taken a decision which sets back further strides for trans equality.
“A couple of days before hand, we had the announcement that the conversion therapy ban was going to include trans people. We didn’t even have the time to celebrate that. It seems whenever there is a win for trans rights, there is a loss as well.
“This is huge loss to Scottish trans people because we didn’t have a week – history had been made but the UK government clearly does not care about trans people’s rights or continuing to be at the forefront of equality in Europe and making trans people’s lives better.”
What happened next?
If the bill was outside the remit of the Scottish parliament, such as a significant change to the reserved Equality Act 2010, orders like Section 30 and Section 32 allowed UK ministers to scrutinise legislation and send articles back to the Scottish parliament for amendment before or after voting took place and before it reaches royal assent.
The use of Section 35 will require a significant re-write of the bill before it is brought to parliament again for a fresh vote and exercises the “nuclear option” to exert Westminster’s control over the devolved administrations.
This significant action led to a row over devolution with Scottish Government officials fearing this bill would not be the only use of S35, and would embolden the UK government to do the same in other areas.
The political conversation then turned toward constitutional argument, with the trans rights aspect being caught in the middle without prospect of change happening in the near future.
Why must we separate trans rights from other politics?
Tate says political arguments around the wider topic of the constitution and devolution in the UK needs to kept separate from trans rights and they should not be used by politicians on either side as a football to make other points with.
“The constitutional argument around the Scottish parliamentary sovereignty and devolution and independence argument need to be a separate issue and trans rights do not need to come into the middle of it, we are being used as a political football and it’s not fair.
“The implications of using the Section 35 order have raised questions of what else if the UK government capable of, and maybe Scotland should go independent to protect itself. It is a shame it has stemmed from blocking this very bill and not something else. It is diluting the message we are trying to send. It is distracting from it.”
Additional Stats
The NHS estimating that transgender people make up about 0.5% of the population. In theory, only a small number of people would be directly affected by any reforms.
Scottish Ministers estimated there would be an annual increase of GRC applications from 30 to 250-300.
Ireland brought in similar GRC legislation in 2015 and had granted an average of 115 applications per year up to 2020.
Tate Smith is an Includability Ambassador specialising in educating others and debunking common myths surrounding trans people and was featured as one of Attitude Magazine's "10 LGBTQ trailblazers to watch out for in the future."
View his Ambassador profile - https://www.weareincludability.co.uk/people/tate-smith
