Can Section 35 be defeated in the courts ?

Nicola Sturgeon left no room for doubt last week where the battle over Scotland’s Gender Recognition Reform (GRR) Bill was headed – “this is something the Scottish Government will have to judicially review… I can say categorically, the Scottish Government will vigorously defend this legislation.”

So how might this play out ?

The UK Government is relying on Section 35 (1)(b) of the Scotland Act 1998 which grants powers to intervene where a Bill makes “modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.” In this context, reserved matters means equalities legislation.

So here’s the first important point: the Scotland Act doesn’t give ministers carte blanche to strike out any devolved Bill with which they happen to disagree. Vetoing a Bill passed by a legislative assembly is a very weighty thing to do, which is why our lawmakers decided that it should only happen where a conflict in law has arisen, and where this would have a significant “adverse effect”.

At the judicial review the Court will look at the legal facts – did the Bill effectively change the Equality Act ? – and it will make judgements on how Section 35 (1)(b) should be interpreted: what level of evidence is required of hypothetical adverse effects ? How serious do these effects need to be ? And what might be construed as reasonable grounds ?

Impact on Equalities legislation

The purpose of the Bill is simple and straightforward: to remove some of the more onerous requirements to obtaining a Gender Recognition Certificate (GRC), and thereby give trans people the dignity that they deserve. So how does this impact on the Equalities Act ? This is what the Government say in their Statement of Reasons:

“Section 9 of the 2004 Act provides that unless exceptions apply, the effect of a full GRC is that “for all purposes” the person’s sex becomes as certified. As a matter of general principle, a full GRC has the effect of changing the sex that a person has as a protected characteristic for the purposes of the 2010 Act. The 2010 Act as a whole was carefully drafted in the light of, and reflecting, the specific limits of the 2004 Act and the relative difficulty with which a person could legally change their sex “for all purposes” … The Bill alters that careful balance.”

So – it doesn’t change the actual legislation then. It just means that more people will be able to get GRCs (which may or may not be something that those who drafted the 2010 law envisaged). Central to the Government’s case is this idea that a GRC transforms a person’s legal status. This will be news to thousands of trans citizens, who’ve never knowingly encountered a single situation in which a GRC would affect their legal status.

The Equality Act itself doesn’t make this kind of distinction. The protected characteristic of gender reassignment applies to all trans people regardless of where they are in the transition process.

Gender critical groups refer to the Haldane judgment in support of their argument that the Bill would impact on the Equality Act. So let me tell you about the Haldane judgment. The gender critical organisation For Women Scotland paid for a comically misconceived court case intended to establish that the Equality Act recognised women’s rights on the basis of their “biological sex”. Lady Haldane found their arguments to be a load of bunkum: the Equality Act makes no mention of biological sex; whereas its authors were clearly aware of the terms of the Gender Recognition Act of 2004 (GRA), which stated that a GRC affected a person’s legal sex “for all purposes.” Even though this wasn’t the outcome that they wanted, gender critical groups have latched on to the point about GRCs, making out that this shows that the passing into law of the GRR Bill would have a material effect on the Equality Act. For example, the organisation Sex Matters argue that Lady Haldane has redefined the words “female” and “woman” !

In reality, the Haldane judgment tells us nothing that we didn’t already know. It reaffirms the provisions of the GRA, and it distinguishes between legal definitions of sex and the gender reassignment protection that exists within the Equality Act.

In summary, there’s a strong case to be made that the GRR Bill makes no change to equalities law, which would mean that the Government’s case falls apart at the first hurdle.

Adverse effects

Most of the Statement of Reasons is devoted to trying to show the adverse effects that the GRR would have on the implementation of equalities legislation. Before looking at some of these examples, there are a few general points that apply to them all. They’re deeply transphobic: the assumption is always that more people getting GRCs will be detrimental to society, there’s no attempt to consider any possible benefits. It also feels like there’s a kind of legal contortion going on. The UK Government can’t show us any changes to equalities legislation because none exist, so they’re trying to convince us that some aspects of the legislation won’t operate as they were intended to. Here too though they’re at a disadvantage, as possession of a GRC isn’t the magic calling card that they’re seeking to portray.

The most telling example of this last point is in a passage discussing single sex space providers:

“These allow for the exclusion of people with the protected characteristic of gender reassignment, including those with a GRC, where their exclusion can be objectively justified. Given the significantly increased possibility of someone with malicious intent being able to obtain a GRC and, as this risk will be widely known, there is a related risk of people no longer feeling safe in any sex-segregated setting and self-excluding from such settings even though they could significantly benefit from them.”

This is an astonishingly weak argument. The Government acknowledge the fact that possession of a GRC doesn’t prevent a trans person from being excluded from a single sex space in certain limited circumstances, but say that there could still be an adverse effect because some people may feel unsafe ! It’s tantamount to saying that “there’s so much hate and fear that’s been stoked up against trans people that it will only make things worse if we give them more rights”.

The Government raises the issue of clubs and associations which can’t invoke Equality Act exclusions because they’re not service providers. The “fear” is that those who wish won’t be able to restrict membership to the growing numbers in possession of a GRC. I can’t overemphasize what a nasty small-minded argument this is. In the first place how many such groups have ever requested sight of a GRC ? Secondly, how many groups would actually want to, as I would imagine that the vast majority would be perfectly happy to be trans inclusive. Thirdly, the legislation hasn’t changed. Finally, how exactly does it advance the cause of equalities for a UK Government to block legislation on grounds that a few people don’t feel comfortable belonging to a club that admits trans people ?

Similar points apply to the Government argument that single sex schools won’t be able to deny admission to 16 and 17 year olds in possession of a GRC. Again – why should they, and what gives the Government the right to speak for them ? And how many young people is this really going to affect anyway ?

Ah but say the Government, the new Bill would disadvantage all biological women:

“When considering the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, decision makers will not always be considering the impact on biological women as a distinct disadvantaged group compared to the impact on biological men, as the protected characteristic of sex is not confined to biological women.”

This is a Government that doesn’t even have a Minister for Women ! Besides being an exercise in hypocrisy, the suggestion that greater recognition of trans people is standing in the way of strengthening equalities legislation is an evidence-free absurdity.

Speaking of absurdities, the argument that the legislation shouldn’t be allowed to proceed because of difficulties in updating IT systems was laughed out of court in the course of last week’s Commons debate.

On the point about the increased risk of fraudulent applications, this was a concern raised in the consultations, and one which the Scottish parliament will clearly have considered. MSPs may well have found more persuasive the argument that possession of a GRC doesn’t actually open any doors, so why would anyone want to make a fraudulent application.

Yes I’m biased. What I think I can say is that on all these issues the Government has serious questions to answer. The Government will be hoping that the Court accept that at least some of the issues raised are legitimate concerns about possible adverse effects, and that because of this the judicial review will fail. From all that I’ve read on this I do think there’s a real chance that the Court will throw out Section 35, but nothing can be taken for granted.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Our Right Of Reply

Giving a voice to victims of press smears


A Corbynist in Starmerland

George Monbiot

A Corbynist in Starmerland

Martin Wicks

A personal website bringing together comment, articles and photos


Labour Party news

A socialist magazine by Labour and Momentum activists

Novara Media

A Corbynist in Starmerland

%d bloggers like this: