Gender Recognition Reform (Scotland) Bill
Long title | An Act of the Scottish Parliament to reform the grounds and procedure for obtaining gender recognition; and for connected purposes. |
---|---|
Introduced by | Shona Robison[1] |
Other legislation | |
Amends | Gender Recognition Act 2004 |
History of passage through Parliament |
The Gender Recognition Reform (Scotland) Bill is a
Background
In July 2002, the
In a June 2020 report, the European Commission classified the legal procedures for gender recognition of 28 European countries into five categories based on the barriers to access. This placed the UK's Gender Recognition Act 2004 in the second from bottom category with "intrusive medical requirements" that lag behind international human rights standards.[5] The procedures have also been described as costly, bureaucratic, and time-consuming for trans people, with successful applicants having to wait two years until they can change their legal gender.[6]
The issue of gender recognition is devolved in Scotland, which allows the Scottish parliament, if it wishes, to legislate for a different policy from that of England and Wales.[4] In 2004, the Scottish Parliament passed a motion to consent to Westminster's GRA, so that a uniform system of gender recognition would be in place throughout the UK.[7] A 2018 consultation in England and Wales found that a majority of the over 100,000 respondents were in favour of removing most of the requirements for a GRC; despite this, in 2020, the government in Westminster announced that it would not legislate to relax the requirements.[4] Separately, the Scottish government also consulted on reforming the law: an initial consultation on the principles of the bill which took place between November 2017 and March 2018 found a majority of the 15,500 respondents in favour of the bill;[8] and the second consultation on a draft bill, taking place between November 2019 and March 2020, also found majority support.[9][10]
Legislative process
Draft stage
The Scottish National Party (SNP) committed to "review and reform gender recognition law, so it's in line with international best practice for people who are Transgender" in their manifesto for the 2016 Scottish Parliament election, which they won.[11][12] After the consultations ended, the Scottish government intended to introduce the bill to Parliament in 2020, but was forced by the COVID-19 pandemic in Scotland to delay consideration until after the 2021 Scottish Parliament election.[13][14]
The 2021 election saw the SNP returned to government, this time in a coalition with the
Stage 1
The bill was introduced on 2 March 2022, by Shona Robison, the Cabinet Secretary for Social Justice, Housing and Local Government. The bill lowers the age people can change their legal gender from 18 to 16, removes the requirement of a medical diagnosis of gender dysphoria, and reduces the waiting time from two years to six months of living in an acquired gender.[16] Also issued on the same day were a delegated powers memorandum,[17] financial memorandum,[18] policy memorandum,[19] and statement of legislative competence.[20]
The bill was subject to a mandatory consultation–its third–by the Scottish Parliament's Equalities, Human Rights and Civil Justice Committee. This committee was designated as the lead committee and ran thirteen evidence sessions.[21][22] The Delegated Powers and Law Reform Committee of the Scottish Parliament, issued a report to the Equalities, Human Rights and Civil Justice Committee, on 16 May 2022, regarding the delegated powers memorandum for the bill, which reported they were content with the delegated powers provisions contained within the bill.[23] The Finance and Public Administration Committee held a consultation on the financial memorandum, which received six responses, all of which were forwarded to the Equalities, Human Rights and Civil Justice Committee. The committee took no action based on the results of its consultation and recommended no changes to the financial memorandum.[24]
The Stage 1 report, from the Equalities, Human Rights and Civil Justice Committee, recommended that the general principles be approved.[25]
Stage 1 vote
The bill was voted on by the full parliament on 27 October 2022 and passed by a majority of 88 to 33, with 4 abstentions and 4 members not voting.[26][27]
Party | Votes for | Votes against | Abstained | Did Not Vote | |
---|---|---|---|---|---|
Conservative
|
|||||
Labour
|
– | – | |||
Liberal Democrats | – | – | – | ||
SNP | 54
|
||||
Scottish Green
|
– | – | – | ||
No Party Affiliation (Presiding Officer) | – | – | – | ||
Total | 88 | 33 | 4 | 4 |
Stage 2
A number of amendments were proposed made to the bill at Stage 2,[28][29] the majority of which were not passed.[30] The Finance and Public Administration Committee published an updated financial memorandum on 7 December 2022 on the bill and noted the updates at its meeting on 13 December 2022.[31][24]
Stage 3
The bill was heard at Stage 3 on 20–21 December 2022 for amendments to the bill. The final debate and vote was held on 22 December 2022.[32]
Equalities, Human Rights and Civil Justice Committee
On 19 December 2022, the day before the Stage 3 debate began, the Equalities, Human Rights and Civil Justice Committee held an evidence session on the bill.
Stage 3 vote
The bill was voted on by the full parliament on 22 December 2022 and passed by a majority of 86 to 39, with 0 abstentions and 4 members not voting.[39] The announcement of the result was accompanied by cheers from supporters in the chamber, and shouts of "shame on you" from protesters in the public gallery.[40]
Party | Votes for | Votes against | Abstained | Did Not Vote | |
---|---|---|---|---|---|
Conservative
|
– | – | |||
Labour
|
– | ||||
Liberal Democrats | – | – | – | ||
SNP | 54
|
– | |||
Scottish Green
|
– | – | – | ||
No Party Affiliation (Presiding Officer) | – | – | – | ||
Total | 86 | 39 | 0 | 4 |
Veto by UK Government
Statutory Instrument | |
Commencement | 18 January 2023 |
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Other legislation | |
Made under | Scotland Act 1998 |
Status: Current legislation | |
History of passage through Parliament | |
Text of statute as originally enacted |
On 16 January 2023, Scotland Secretary Alister Jack announced that he would make an order under section 35 of the Scotland Act 1998, which would prevent the bill from proceeding to royal assent. Jack cited concerns that the bill would adversely impact the UK-wide Equality Act 2010 as the reason for the tabling of the motion before the Westminster Parliament; equal opportunities are a reserved matter under the Scotland Act.[41][42][43] The order using the negative procedure was made on 17 January 2023 and entered into force on the next day. The negative procedure means that the order is in force unless either house of Parliament votes to disagree with the order within 40 days. The final day to vote a disagreement was 27 February 2023.[44] This was the first time royal assent was not granted to a bill passed by the Scottish Parliament since its creation in 1999.[45] As similar powers regarding the Senedd and Northern Ireland Assembly have never been used, this is the first post-legislative veto of a bill since Queen Anne refused assent to the Scottish Militia Bill in 1708.[46][original research] On 17 January 2023, Jack made a formal statement to the
On 17 January 2023, Stephen Flynn the SNP leader at Westminster requested and was granted an emergency debate on the use of the Section 35 order. The debate was on the question "This House has considered the Government’s decision to use section 35 of the Scotland Act 1998 with regard to the Gender Recognition Reform (Scotland) Bill."[49] The debate lasted for two hours and the house voted 318 to 71 in favour of the UK government position that the house had considered the matter.[50]
On 24 January 2023, Flynn tabled a
Judicial process
Judicial review
On 12 April 2023,
On 20 December 2023, Somerville announced that the Scottish government would not appeal the ruling, but would not withdraw the bill from the Scottish parliament. She said: "For the avoidance of doubt, this bill is not in the bin and is waiting an incoming UK government that has more respect for devolution."[59]
Opinion on the bill
Support
The bill was supported by
The bill is similar to the one adopted in the Republic of Ireland. In Northern Ireland, the bill was supported by Sinn Féin, the Alliance Party, and the Social Democratic and Labour Party, whose politicians and MPs raised the possibility of adopting a similar bill.[62]
Opposition
The bill was opposed by the Scottish Conservatives,
Opinion polls
A January 2022 poll commissioned for the
A 2023 YouGov poll commissioned by The Times found that two thirds of Scottish voters opposed key aspects of the bill, particularly those relating the lowering of the minimum age for applying for a GRC.[73]
Soon after the passage of the bill, academic commentary began to moot the possibility of an invocation of section 35 of the
Alister Jack and Kemi Badenoch were invited by the Scottish Parliament's Equalities, Human Rights and Civil Justice Committee to give evidence about their decision to block the bill; both declined to attend.[83][84]
Nancy Kelley, the chief executive of Stonewall, and Colin Macfarlane, the director of Stonewall Scotland, said that Sunak was risking "re-toxifying" his government's record on LGBT rights and introducing "an effective trans travel ban". Kelley and Macfarlane were quoted as saying "the UK government sees trans people as a threat to be contained, not citizens to be respected".[80] A Cabinet Office spokesperson responded by saying that trans people "have not and will not be banned" from entering the UK.[80] In contrast to Labour Party leader Keir Starmer, who criticised the bill as "cavalier", Scottish Labour leader Anas Sarwar supported the bill.[88][89] Maggie Baska in PinkNews notes that Starmer "faced backlash from other politicians, LGBTQ+ advocates and trans people over his comments on the GRR bill".[90]
See also
- History of transgender people in the United Kingdom
- Legal status of transgender people
- LGBT rights in Scotland
- LGBT rights in the United Kingdom
- Transgender rights in the United Kingdom
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