Gender recognition reform: Britain's governments must work together to minimise uncertainties
Baroness Kishwer Falkner, Chairwoman
| Equality and Human Rights Commission
As Britain’s equality regulator, we have a duty to advise government on how changes to the law might affect the operation of the Equality Act 2010.
In January this year, the Equality and Human Rights Commission (EHRC) called for more detailed consideration of proposals to reform the legal gender recognition process in Scotland.
The Scottish Government’s proposed amendments to the Gender Recognition Act 2004 will significantly alter how people resident or born in Scotland can change their legal sex by acquiring a Gender Recognition Certificate (GRC). This includes reducing the minimum age from 18 to 16, reducing the length of time a person must live in their acquired gender before they can get a GRC from 2 years to 3 months and removing any legal requirement for medical or psychological oversight during the process.
We acknowledge the democratic mandate of the Scottish Government to legislate on these matters with the support of the Scottish Parliament. We also acknowledge that this is an issue of significant legal and emotional importance to many trans people, as a key part of our mission is to help trans people to be able to live safely and free from prejudice and discrimination.
However, as Britain’s independent equality regulator, the EHRC also has a duty to advise governments on how new laws, or proposed changes to the law, might affect the operation of the Equality Act 2010 across Great Britain, especially in areas of policy and law-making that are contested.
Under the Equality Act, we are responsible for upholding the rights of nine different protected characteristics, and these rights sometimes interact or conflict with each other in important ways. Two of these characteristics are sex (in other words, being a man or a woman) and gender reassignment (which protects everyone who is trans).
The extent to which trans rights impinge on women’s rights in relation to single sex spaces and services, sports and the collection and analysis of data on sex such as the gender pay gap, amongst other matters, has become a much more visible and polarised debate in recent years.
There have been a number of high-profile legal challenges around these issues in Scotland itself. Public opinion has also shifted significantly in recent years. The 2021 British Social Attitudes survey shows a sharp fall in the proportion of people supporting trans people being able to change their sex on their birth certificate, from 58% in 2016 to 32% in 2021. In that context, it is important to listen to those who have concerns about GRA reform, get the legislation right, and reassure the public that there will not be unintended negative consequences.
Our role in this debate is to try to hold the ring and explain the law, which can be complex in relation to sex and gender. In particular, we must explain the potential implications of having two different processes for obtaining a GRC in different parts of Britain, as will happen if a new law is enacted in Scotland.
That’s why we have written to the Scottish and UK governments to set out the possible impact of the reforms on the operation of the Equality Act across Britain.
We have called on them to work constructively together before the legislation proceeds. Such discussions are vital if we are to minimise uncertainty and effectively protect the rights of everyone.
Trans people, and their employers and service providers, must have greater clarity on the cross-border implications of the proposed legislation. It may, for example, be difficult for trans people with Scottish GRCs to be certain of their legal status in England and Wales if two systems using different criteria for legal gender recognition co-exist within Britain. It may also lead to confusion on the part of employers and service providers to have to navigate two systems, with a potential for further litigation.
We hope the ongoing process of parliamentary scrutiny at Holyrood will clarify the points we have raised.
We do understand that our calling for detailed consideration may be frustrating for some trans people and others who want fast progress. However, taking time to get the law right and iron out any complications will ultimately benefit everyone. Where changes to other laws create uncertainty with respect to the protections contained in the Equality Act, it is our duty to speak out, as our aim is to ensure that new laws work effectively to uphold everyone’s rights.
Everyone in Britain must have an equal chance to be who they are and get on in life. At the EHRC, we are here to advise on and enforce the Equality Act, and in this case to explain its interaction with the Gender Recognition Act. We stand ready to work with the UK and Scottish governments to achieve our shared goal of a fairer country that is free from all forms of discrimination.
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