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Sunak’s constitutional clash could backfire

Warring over equalities legislation bakes it deeper into the British system

Artillery Row

Rishi Sunak has chosen war over the Gender Recognition Reform Bill (GRRB) passing Scottish parliament, which would significantly lower the standards required to get a Gender Recognition Certificate (GRC) and thereby enter opposite-sex spaces. Understandably, the Bill caused a great deal of unrest among women’s rights activists and was met with widespread rejection by the Scottish people. The basis for this rejection from the government was that the GRRB would have an adverse effect on the Equality Act (EA).

The Government argues that this falls under the reserved matter of equal opportunities. Or, for the terminally dull among you, Schedule 5, Section L2, of the Scotland Act 1998. However, the reality is not as cut-and-dry as Scotland overtly legislating on a reserved matter. The Gender Recognition Reform Bill, among other things, does the following:

  1. Provides GRCs via a Scottish authority, rather than the UK-wide body, thus creating a separate system in Scotland than the rest of the UK.
  2. Provides GRCs to 16 year olds, rather than 18 year olds. As well removing the need for someone to identify as transgender for two years, lowering it to six months, and removing the need for a gender dysphoria diagnosis, thus increasing the number of GRC holders.

In response, the Government stated that the separate systems make it so that someone who held a GRC in Scotland, would not have that GRC apply in England. Therefore, there would be single-sex groups one could join in Scotland — as a GRC means you are legally treated as your “acquired gender” — but not in England. 

Westminster never should have given the power to Scotland to begin with

This is not cut-and-dry either. Equal opportunities are defined in the EA, and whilst the groups one could join differ between countries, the GRRB does not contravene or overturn anything in the Act. Instead, it changes the outcome of the enforcement of that Act between countries by providing GRC’s which apply in Scotland, but not the wider UK. Therefore, the counter-argument goes, it has not interfered in a devolved matter by not altering the EA, which defines what equal opportunities are. This argument is strengthened by the fact that gender recognition is a devolved matter, and so Scotland had a right to put a bill of this nature forward to begin with. If Westminster did not want two separate outcomes for the enforcement of EA, then it never should have given the power to Scotland to begin with — which it did in Wales, where gender recognition is explicitly reserved.

In light of all this, the question becomes: when a law by a devolved power does not affect a law pertaining to a reserved matter itself, but the outcomes of that law, has Scotland intervened in a reserved matter? This case is much more difficult to answer.

The answers to these questions will come in the inevitable court case. The political implications of invoking Section 35, and how it relates to the British constitution, make for less technical and more enjoyable reading. Part of the positive political response has framed this as a defence of women’s spaces. However, any look at the history of the Gender Recognition Bill will demonstrate that this will, at best, delay the fears of women’s rights activists.

The Gender Recognition Bill was made necessary due to a ruling in the European Court of Human Rights (ECHR,) which concluded that not allowing transgender people to change their birth certificate was a violation of their Section 8 and 12 human rights. Since then, the Women and Equalities committee has reviewed the Act and stated the following:

We recommend that provision should be made to allow 16- and 17-year-olds, with appropriate support, to apply for gender recognition, on the basis of self-declaration.

Whilst we recognise the importance of the Gender Recognition Act as pioneering legislation when it was passed, it is clear that the Act is now dated. The medicalised approach regarding mental-health diagnosis pathologises trans identities; as such, it runs contrary to the dignity and personal autonomy of applicants. 45. Within the current Parliament, the Government must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions. In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.

With a majority Conservative panel, the Women and Equalities Commission supported the two provisions the Government now claims would enlarge the cohort of those with GRC to the extent that it would destabilise the “careful balance” of the Equality Act. All four of the Conservative members of the Committee who still serve in Parliament — Maria Caulfield, Jo Churchill, Mims Davies and Flick Drummond — voted in favour of Section 35, in total contradiction to their own recommendations.

The Act was reviewed again in 2021-22, again with a Conservative majority panel — which moderated itself in one direction by just removing the need for a medical diagnosis and leaving the age at 18. It went further than Scotland did in another direction by advising that the government remove the need to live as a man or a woman entirely. Of the six Conservative members of the committee who are still serving in parliament, four of them — Philip Davies, Jackie Doyle-Price, Caroline Dinenage and Theo Clarke — all voted aye. The remaining two simply did not vote.

Conservatives have chosen to make the EA their line in the sand

The reasons for challenging the GRRB according to the Government rest on the fact that increasing the number of people holding a GRC would be debilitating. Yet, when provided with opportunity, at least eight Conservative MPs who voted aye to Section 35 evidently recommend some of the propositions that would expand the number of those holding GRC’s, if not more extreme propositions. Furthermore, the Conservative Government, only two years previously, lowered the cost of a GRC application from £140 to £5 and moved the process online. This necessarily would have also raised the number of those able to get GRCs as well. Whether this will be used as evidence that the number of GRCs is irrelevant to the functioning of the EA, is something only a judge can decide.

At best, Section 35 has been initiated not out of concern for women’s spaces, but out of a desire in Westminster to change those spaces themselves, across the whole of the UK, rather than let Scotland do it in a piecemeal fashion. At worst, it’s been initiated for purely political purposes — to frighten the SNP so they are less of a problem come next election.

The trade-off for this ploy is that the Conservatives have chosen to make the EA their line in the sand. By appealing to it, they have made it that much harder to repeal should they ever want to. The Act established the Equality and Human Rights commission, essentially binding together Equalities and Human Rights questions. Considering that the Human Rights Act (HRA) is less controversially considered to be a key part of our unwritten constitution, Sunak may have helped to make the case for considering the EA, alongside the HRA as crucial parts of our constitution. The interplay of Human Rights and Equalities law, seen in the creation of the Gender Recognition Bill from an ECHR ruling, underscores how tightly bound these two concepts are becoming.

That same ECHR now considers the need for a diagnosis of gender dysphoria to acquire a GRC as a sign that the UK is “lagging behind” on international human rights standards. Considering that the ECHR forced the creation of the Gender Recognition Bill to begin with, women’s rights activists should not hold out hope that the Equality Act, Westminster, or the ECHR will protect them from a rise in the number of those holding GRC’s entering single-sex spaces.

All of this creates a situation that the Conservatives cannot win. Should they lose to the SNP, they clearly lose. Should they beat the SNP, they will likely see further pressure from within the party and from the ECHR to do what the GRRB was going to do anyway — earning the hatred of those they temporarily won over. Should they beat the SNP and stave off these demands, they will have made the Equality Act a crucial piece of legislation in how the British state is conducted, worth going to unprecedented lengths to keep intact. 

Consequently, should they ever want to repeal the Public Sector Equalities Duty, which mandates equalities goals and therefore staff dedicated to these goals in every public authority from the NHS to local councils, it will be that much harder to do. This will further mean more reports of civil servant training courses and more mandatory quotas. That in turn further upsets their traditional base, who will continue to demand they do something about the “wokeness” in our institutions — even as the Conservatives emphasise the importance of the legislation that mandates it to begin with.

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