Scottish Government must come clean over the muddle of gender law reforms

This week, MSPs return to Parliament to consider draft legislation that will allow any man to be recognised as a woman in law, if he declares himself so.

The Gender Recognition Act already allows a few individuals to change their legally recognised sex by obtaining a Gender Recognition Certificate (GRC). The Scottish Government is proposing to remove all medical oversight from the process, and issue GRCs based on self-declaration alone, effectively making them available on demand. Ministers maintain this will have no impact on women’s rights.

Thinking of these certificates as a sort of ‘key’ helps to understand the arguments here. MSPs are being asked to agree to give out far more of these keys, to a larger and more diverse group of people, with scant protections and minimal regulation.

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The government estimates the number of GRC-holders will increase ten-fold. There is very little ‘science’ behind those predictions. Cabinet Secretary Shona Robison, has speculated that up to 25,000 people in Scotland might use this process in future, compared to around 600 now.

What this ‘key’ unlocks is the central question for MSPs. We and others have been seeking an answer on this from ministers for the last three and a half years and been met with waffle and contradiction.

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The UK Government thinks that possession of a GRC give someone who was born male a stronger right of access to women-only spaces. Its policy for transgender prisoners in England and Wales demonstrates this. The Scottish Government appears to disagree. It states GRCs have no effect here, but can’t or won’t explain why.

On the other hand, Scottish Government officials admit that holding a GRC “may be a factor in the decision taken by a service provider” to allow a man who has obtained a ‘female’ GRC to access women only spaces and services.

Trans Rights activists hold a counter demonstration next to a women's rights demo last year in Edinburgh as the reforms to the Gender Recognition Act in Scotland gathered pace. PIC: Jeff J Mitchell/Getty Images.

What about employment? Again, officials admit a GRC may well “provide new legal rights which could impact on other people”, citing the example of an employer who “might be required” to treat a male employee with a GRC as female. This means that a woman seeking to take a sex discrimination case against her employer (for instance, an equal pay case) would be unable to use a male colleague who has obtained a ‘female’ GRC as a comparator, extinguishing her ability to pursue the claim.

The Scottish Government also maintain that males who have changed their legal sex by obtaining a GRC should be able to access positive action measures intended to increase women’s representation on public boards. Ministers are going to court this autumn to defend that position.

The Scottish Government’s own words and actions are at odds with its argument that GRCs do not unlock access to measures put in place to prevent discrimination against women on the basis of sex. Its position is one of muddle, at best.

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Without adding explicit safeguards, MSPs will be putting women’s rights at risk. The Scottish Government and opposition MSPs who support the proposals in the Gender Recognition Reform Bill – and are content to open the door to anyone who asks – should come clean and admit that.

-Lucy Hunter Blackburn, Kath Murray and Lisa Mackenzie are co-founders of policy analysis collective MurrayBlackburnMackenzie