At one time or another, each of the three main political parties has supported the contents of the contested Bill, unfortunately not all at the same time. The support for the change in the process of obtaining a GRC is driven by an understanding of the importance to trans people of having their acquired gender endorsed by legal recognition, and the suffering and humiliation attached to the current process.
Making it easier to get a GRC has raised fears that the change might reduce protections for women and girls by making it easier for predators into safe spaces. Both May’s Conservative government, in consulting on this change, and the Scottish Parliament, in passing this reform, addressed in detail the issue of whether the Equality Act contained adequate safeguards to protect against that risk.
Those safeguards have never depended on whether the trans person has a GRC. They depend, according to the Equality Act, on whether the exclusion of the trans person, in an individual case, was a “proportionate means of achieving a legitimate aim”, namely ensuring that a safe space was secure for women and girls.
Both the Scottish Parliament and May’s government concluded the Equality Act would and should remain unchanged by the GRC change. As the Conservative government’s proposals made clear in 2018, “trans people with a GRC can still be excluded from single-sex services, or provided with a different service if it is proportionate to do so on the facts of the individual case”.
Yet it is the threat to women and girls which has led the government to block the Scottish Bill. Kemi Badenoch, UK equalities minister, said as much to The Times on Saturday. And the UK Government’s written reasons for blocking the Scottish Bill highlighted this fear: “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 [emphasis added].”
“The legal advice deems that we should use a section 35 order this time,” said Alister Jack as he sorrowfully announced the block in the Commons. When repeatedly pressed for the legal reasons, he said he “did not want to bore everyone to death” with them. “This decision is entirely about the legal advice I have received,” he added. The law, filled with impenetrable technicality too boring to explain, forced them into this.
It’s clear from the approach of the May government, who were advised by the same government lawyers as Sunak’s, that the UK Government were not forced to block. Indeed there is considerable doubt whether the UK Government has the legal power to block.
Because the Bill is within the competence of the Scottish Parliament (there is no doubt that the conditions for the granting of a GRC are undoubtedly for Holyrood to determine) a block on a Scottish Bill which does exactly that is only possible if, as a threshold requirement, the law change introduced by the Scottish Bill “modifies the law as it applies to [equality law].” This phrase comes from s35 of the Scotland Act 1998.
GRCs are not referred to in the Equality Bill in relation to safe-space safeguarding provisions. A GRC can be taken into account by the safe-space provider if appropriate in determining how to ensure appropriate security. This is the position now, and would be the position if the Bill gets Royal Assent. The law on GRCs as it applies to this aspect of equality law is not changed by the Bill. This threshold requirement is not a question of reasonable belief by Alister Jack. It’s a question of hard law, and does not appear to be met.
Only once that hard-law requirement is met does the judgment by the Scottish Secretary fall to be made as to whether the application of that change adversely affects equality law. The Scottish Secretary’s 13-page reasons document lists lots of supposed adverse effects. But in reality the main one, the one which drives the conflict, the one which motivated the blocking, is the effect on safe spaces. And the law remains the same. If that justification fails, then inevitably the whole justification will be tainted by that factor and be set aside.
The providers of safe spaces can block on the same factual grounds as before. If they feel that the Scottish GRC is too prone to fraud they could ignore them altogether. And if necessary to preserve the safe spaces, it would be upheld by the courts.
The issue of whether the Bill proceeds has become a legal issue. But it has become a legal issue because of independence politics. Wherever the Conservatives and SNP may have started on the GRC issue, their positions are now determined not by an earnest desire to solve the policy issue but by a desire in the SNP’s case to characterise the UK Government as undermining the Scottish Parliament’s power. And in the Conservatives’ case, to characterise the SNP as overwoke and insensitive to the interests of women and girls.
Instead of detailed negotiations between Holyrood and Whitehall, the whole Bill is under threat. When s35 was going through the Lords in 1998, the minister said the existence of the powers “should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used”.
The judges should not be resolving the issue of the arguments about safe spaces versus fair treatment of transgender people. The politicians should. In the UK, we don’t do judges deciding policy. Elected politicians decide policy.
If the Bill is blocked then the judges will have overturned the Scottish Parliament’s policy conclusion in an area within its competence after six years of consultation including detailed consideration of how to secure safe spaces, and where they had adopted a solution that a Conservative government had previously accepted.
There is too much politics and too much law in this saga. No doubt women and girls and trans people hoped the politicians would find a way. Instead, they have thrown it over to the courts. And the courts don’t do compromise, mediation and balance. They do yes or no. And that is unlikely to solve the problem here.
Charlie Falconer is a Labour peer, lawyer and former UK Justice Secretary