The UK government has blocked the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent by making an order under section 35 of the Scotland Act 1998.

 

Under this provision, the UK government has the power to make an order prohibiting a Bill passed by the Scottish Parliament from being submitted for Royal Assent if the Secretary of State has reasonable grounds to believe that it would have an "adverse effect" on the operation of the law on a 'reserved matter' (which in this case, was equality law). This is the first time that the power has been used. I

 

On 16 January 2022, Alister Jack, the Secretary of State for Scotland, announced that he was invoking section 35 because had concerns that the Bill would have an adverse impact on the operation of Great Britain-wide equalities legislation. He added that, if the Scottish Government were to bring an amended Bill for reconsideration in the Scottish Parliament, he hoped it would be possible to find a constructive way forward that respects devolution and the operation of the UK Parliament's legislation.

 

The Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill in December 2022. The Bill would have: 

 

 - Removed the requirement for a psychiatric diagnosis of gender dysphoria in order to obtain a gender recognition certificate (GRC). 
 - Allowed an individual with a Scottish birth certificate, or who is ordinarily resident in Scotland, to self-certify after living as their acquired gender for three months (reduced from two years). 
 - Extended the right to apply for a GRC to 16- and 17-year-olds, after they have lived as their acquired gender for six months, with a three-month reflection period. 

The requirements of the Gender Recognition Act 2004 would have continued to apply in England and Wales so the Bill would not, as many perhaps have misunderstood, have altered the law across the whole of the UK - but nevertheless the Government considered the wider implications and precedent was one they needed to prevent.   

 

The Bill had received criticism from women's rights organisations due to concerns about the impact it may have had on single-sex spaces and services.  Many employers had also supported the UK government's concerns about certain aspects of the Bill, in particular, the safety issues for women and children.  Conversely, of course, the attack on the Bill has received criticism from those in support of the relaxing of gender recognition pre-conditions.  

It is thought almost certain that Nicola Sturgeon, First Minister of Scotland, will challenge the section 35 order, most likely using judicial review proceedings, and so the story is most likely far from over.