Scottish Gender Recognition Reform Bill (2023)
The Gender Recognition Reform (Scotland) Bill was introduced in the Scottish Parliament on 2 March 2022 and passed on 22 December 2022 by 86 votes to 39. The bill aimed to simplify the procedure for legal gender recognition: the requirement for a medical diagnosis would be removed, and 16- and 17-year-olds would also be able to apply.
Blockade by London
On 17 January 2023, the UK Secretary of State for Scotland issued an order under Section 35 of the Scotland Act 1998. As a result, the bill could not be submitted to the King for Royal Assent. The order cited adverse effects on the operation of legislation reserved to the UK Parliament, including equalities legislation, as well as the creation of two different systems within the United Kingdom.
Consequences
The Scottish Government challenged the order in court. On 8 December 2023, the Court of Session rejected the challenge and ruled that the order was lawful. As a result, the bill did not become law. The case is frequently cited in discussions of international developments relating to self-identification; see also the legal background.
Background and parliamentary process
The bill was preceded by two public consultations, the first from November 2017 to March 2018 and the second from November 2019 to March 2020. It was introduced by Shona Robison, then Cabinet Secretary for Social Justice, Housing and Local Government. The Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee prepared the bill for consideration. On 27 October 2022, Parliament approved its general principles by 88 votes to 33, with 4 abstentions. The amendments were considered on 15 and 22 November, followed by the final stages on 20 and 21 December 2022.
More about the substance
An applicant would have been required to make a statutory declaration instead of submitting medical documentation. The proposal would also have made it a criminal offence to provide false information in doing so. The period during which a person must have lived in the acquired gender would also have been reduced from the current requirement of two years.
Significance
The order was issued by Secretary of State Alister Jack. It was the first time since the establishment of the Scottish Parliament in 1999 that the UK Government had used this power. The case therefore concerns not only gender registration, but also the relationship between Edinburgh and London. Author J.K. Rowling had already opposed the Scottish plans in her June 2020 essay. In the Netherlands, a comparable proposal had a different outcome: it was withdrawn after years of delays, as described in the bill to amend gender registration. The current Dutch rules are set out in the article on the Transgender Act in the Netherlands.