by Matteo Monti*
On 16 January 2023, the issue of the legal identity of transgender people became the subject of a new dispute between Scotland and the UK government.
The application of Section 35 of the Scotland Act 1998 to the Gender Recognition Reform (Scotland) Bill (GRRb), approved by the Scottish Parliament, lit the fuse of a new institutional conflict.
Over the past two decades, the United Kingdom has begun to conform to international standards on gender transition. Before, transgender people were not granted legal identification with their post-gender affirmation identity across the whole territory of the United Kingdom, particularly with regard to their birth certificate and the possibility of same-sex marriage. In 2004 – also due to the ECtHR decision Goodwin v United Kingdom [2002] and the House of Lords’ case Bellinger v Bellinger [2003] – the Gender Recognition Act (GRA) was eventually enacted by the British Parliament.
In short, the GRA enables transgender people to apply for a “full gender recognition certificate by a Gender Recognition Panel” if certain conditions are met. Among the conditions are a) having or having had gender dysphoria; b) having lived “in the acquired gender throughout the preceding two years”; c) and expressing the intent “to continue to live in the acquired gender until death.”
Within this context, in 2004 the Labour-led Scottish government, through a Legislative Consent Motion, the so-called Sewel Motion (S2M-813), ‘devolved’ the issue of recognising the legal identity of transgender people to the British legislature. The motion was advocated by Scottish Labour and the Deputy Minister for Justice (Hugh Henry) because, in their view, the central government would have been quicker in developing such legislation and would have ensured uniform regulation across the country. Such a motion was strongly opposed by Nicola Sturgeon, at the time a member of the opposition, who argued for the matter to be debated in the Scottish Parliament.
Over the years, the GRA has not been considered completely satisfactory by the transgender community. Over the last five years, there have been several public consultations on the requirements of the GRA, which led the Scottish National Party government to attempt to modify the GRA by formulating a Scottish bill in this matter.
After the discussions in the committees of the Scottish Parliament and public hearings, the Gender Recognition Reform (Scotland) Bill (GRRb) was passed with 86 votes in favour and 39 against. In short, the GRRb changes the requirements and timeframe for obtaining the certificate. Under the GRRb, a person can apply for a Gender Recognition Certificate if the individual: a. “is aged 16 or 17 and has lived in the acquired gender throughout the period of six months ending with the day on which the application is made”, or b. “is aged at least 18 and has lived in the acquired gender throughout the period of three months ending with the day on which the application is made” (Section 4, Grounds on which application to be granted, GRRb). Additionally, different types of Gender Recognition Certificates (GRC) to be issued in different circumstances (‘full’ GRC and ‘interim’ GRC) are settled (Section 6, Certificate to be issued, GRRb). The act also removes the need for the diagnosis of gender dysphoria. In this regard, it is worth noting that transgender people do not always suffer from gender dysphoria and associated symptoms: the proposal, therefore, went in the direction of recognising gender self-identification without a medical diagnosis.
On 16 January 2023, the GRRb was blocked by the Secretary of State for Scotland Alister Jack, who, in so doing, issued the first order under Section 35 of the Scotland Act 1998 in the history of the British Devolution. The official reason for this application of Section 35 was an alleged incompatibility of the GRRb with the Equality Act 2010, but issues related to driving licenses, passports, and broader public safety reasons were also raised in the public debate. It is noteworthy that the British government’s criticism was based in particular on the alleged alteration of the complex mechanism that, according to the British cabinet, tied the 2004 GRA to the Equality Act, as well as on the problems of a non-uniform legal regime for transgender people on the British territory and on the risks of frauds connected with the new provisions of the Scottish Bill.
In this regard, the core of the debate seems to consist of the alleged discrimination against women that would be created by the increased number of subjects recognised by the GRRb compared to the GRA. It is indeed a mere quantitative increase of the supposed cases of discrimination because, to all intents and purposes, such alleged discriminations generated by the sex assignation on the basis of the certificate and not on the basis of the sex assigned at birth were already implicit and subsisting under the GRA of 2004. In other words, many disputed issues, such as the application of affirmative actions that the Equality Act 2010 establishes (also) to transgender women, were already on the table in 2004. The new debate simply reproposes the vexata quaestio concerning the extension of certain rights to those women who were assigned a different sex at birth. This debate, however, had already been resolved by the 2004 legislature and hence the newly raised argument of increasing the number of possible cases of discrimination does not seem to be a solid reason to stop the Bill.
However, the distinctive contents of the Bill, such as the lower minimum age to obtain the certificate and the reduction of third-party checks (e.g., medical diagnosis), have found little space in the debate compared to the institutional problem, which is becoming more and more prominent.
The use of the ‘atomic weapon’ of Section 35 ‘in a minor skirmish’ – in Lord Falconer’s words – bodes a new season of tensions within the British territorial system: the SNP has talked about a “direct attack on the institution of the Scottish Parliament” and the need for “defending Scottish democracy”, but the decision has also created discontent in Wales.
The conflict finally will be most likely settled by the courts, as the Scottish government seems keen to take the case to the judiciary.
In this regard, the ongoing institutional conflict reveals some unresolved issues of the UK sui generis “federalizing process” (the so-called Devolution). In a constitutional system such as the United Kingdom, which neither has a constitutional charter (Bill of rights) nor has established a proper supreme/constitutional court to act as arbiter of state-region conflicts (despite the increasingly central role of the Supreme Court, as demonstrated in the case of the Scottish independence referendum), the institutional question acquires peculiar characteristics. The present institutional conflict goes beyond the mere competency issue and has laid bare not only issues regarding the division of powers and competencies, but, most evidently, the shortcomings of the British territorial governance model. The GRRb falls within the matters devolved to the Scottish Parliament, but also impacts on others of exclusive competence of the British Parliament: in this sense, the GRRb involves constitutional elements that in the Continental Europe would be defined as fundamental rights.
On this matter, the main issue to be analysed is the asymmetry in fundamental rights protection for transgender persons that the Bill might create within the territory of the United Kingdom. The absence of a definition of minimum standard of federal fundamental rights equivalent, for instance, to the so-called Mindeststandardlehre – the doctrine of the minimum standard developed by the German Constitutional Court – makes it complicated to delimit and understand the space of action of sub-national units within the United Kingdom. The principle of equality, intended as respect for the core of federal fundamental rights, normally guides the interpretation of the federal Courts in these matters as well as the spaces of action of the federated units: without this clear framework, one might wonder on what interpretative basis the British Supreme Court will decide on the issue. In this perspective, the scrutiny of the “reasonable grounds” in relation to the GRRb’s interference with the Equality Act entails a deeply institutional issue: the need to find a functioning rule concerning the space of regional civil (fundamental) rights within that particular federalizing process that is the Devolution.
The decision will be intrinsically also connected to the new role that the UK Supreme Court would thus acquire in an institutional landscape that lacks an established tradition of litigation between ‘regions’ and the central state. Whilst in the past these disputes had been resolved mostly by political means, the more the English system of regional autonomies progresses – and the more conflictual it inevitably becomes –, the greater a role of conflict resolution will the Supreme Court have to assume.
To conclude, it seems that the Scottish government’s Bill will be destined to lead not so much to a debate on the issue of the legal identity of transgender people as to a discussion on the forms and mechanisms of the English territorial system.
* Research Fellow, University Luiss Guido Carli
