Scott Wortley
6 min readDec 10, 2023

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Correspondence to MSPs in december 2022 on the gender recognition reform (scotland) bill

Given the decision of the Lord Ordinary on the section 35 order last week I went back to look at my correspondence to MSPs during the passage of the bill last year. Despite contacting all of my constituency and list MSPs I only received responses from two, my constituency MSP who voted against her party whip and one list MSP.

The correspondence was as follows

I have kept an eye on and been disappointed with the debate and parliamentary process on the Gender Recognition Reform (Scotland) Bill. There are some fundamental issues which have been ignored in the debate, and which – for reasons best known to the members of the relevant parliamentary committee – did not appear to warrant any evidence being taken.

You will have had a lot of correspondence on aspects of the bill. I want to focus on the issue on which the parliament has had no evidence.

Some present this bill as purely an administrative matter. That it has no impact beyond the confines of the bill. To a large extent this is the position which appears to have been taken by the government. This position is not sustainable. It is completely wrong.

Legislation matters. The reason legislation is passed is because it has legal consequences – real life impacts. Legislation has effect, and the interaction between the bill you are voting on today and other legislation is a topic that has not been considered in any meaningful way in the evidence before the parliament at stage 1, in the government papers, or in the parliamentary debates. .

During the stage 1 process the cabinet secretary refused to answer the question as to whether a GRC granted under the changes introduced by this bill would change sex for the purposes of other legislation. This failure to answer the question seemed odd. It particularly seemed odd when there was a case in the Court of Session which was considering the very question of the legal consequence of a gender recognition certificate. That case was decided last week. The parliamentary committee despite holding an emergency evidence session decided not to hear evidence on this case and its consequences.

In For Women Scotland, petitioner decided in the Outer House last week by Lady Haldane (available here https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csoh90.pdf?sfvrsn=8eee302c_1 ) the court had to consider the legal effect of a gender recognition certificate under the existing Gender Recognition Act 2004. This legal effect was specifically considered in the context of the Equality Act 2010. Lady Haldane concluded that the meaning of sex in the Equality Act 2010 did not just cover biological sex but also included those with a gender recognition certificate. Hence, if A was born male and had a GRC to be female for the purposes of the Equality Act 2010 A is a woman.

The bill you are considering does not change this ruling. The bill you are voting on amends the 2004 Act – it introduces self identity without any requirement to establish gender dysphoria as the test to determine when a GRC is granted.

This has implications. Sex is a term which runs throughout the Equality Act. It relates to single sex spaces and services – and that has been the element which has generated much discussion. There are implications for this I will reference later.

Expansion of the category of people who get a GRC expands the category of those who have the protected characteristic of the particular sex without being biologically that sex. This goes far beyond what was envisaged by the structure and framework of the Equality Act.

Comparators in sex discrimination cases involve consideration of those with the same and opposite sex in relation to pay and conditions. The relevant provisions are in ss 64ff in the Equality Act 2010. The Scottish government has not explained how this will work. The Stage 1 report did not consider this at all.

One argument that has been made by some who pretend there is no impact is that the number of people who will obtain GRCs is very small. This argument completely fails to understand how sex discrimination and equal pay in the Equality Act works.

In assessing comparators for the purposes of equal pay or sex discrimination you need only one comparator. One person obtaining a GRC can consequently remove or change comparators – and have a considerable impact on sex discrimination and equal pay issues.

Most businesses have only a small number of employees. The nature of the Scottish economy is that the vast vast majority of businesses are small or medium sized enterprises.

Consider the following situation. A business employs 3 people. A and B are male, C is female. B is 50 and has benefited from typical male career progression and wages. And B now self identifies as a female and gets a GRC. B is removed as a comparator for C in assessing her terms and conditions. If B and C were doing the same job with C being paid less than B B’s GRC means C no longer has a comparator.

One person using a GRC can have a huge disproportionate impact in comparators within the vast majority of businesses. And that GRC has this impact because it changes an individual’s sex for legal purposes.

This is not how the Equality Act was intended to work, because the Equality Act was framed on the basis of a GRC being a highly unusual very limited event (where medical diagnosis was the threshold for entry). The interaction of the two pieces of legislation needs to be done together. Amending the law in Scotland without simultaneous amendment of the Equality Act creates these potential issues. The bill has consequences beyond its own terms.

This has implications too for issues around single sex spaces and services. The test for a single sex service allows in Sch 3 of the 2010 Act general policies to be placed by service providers for single sex purposes. THis single sex service would (given s 9 of the 2004 ACt) now include those who were not biologically of that sex in greater numbers than when medical diagnosis was required. THis has particular issues for single sex services for those who have suffered trauma resulting from particular forms of abuse or assault. I have PTSD and have benefited from trauma services myself. I know how important trust is within the trauma service – both in relation to who is there with you in waiting rooms or in counselling or therapy sessions.

I am aware that in this latter case Sch 3 para 28 of the Equality Act allows someone with the protected characteristic of gender reassignment to be excluded from a single sex service – but the change in GRC changes the starting point. Everyone with a GRC would be presumed to be permitted within the single sex service because as the judgment last week confirms the GRC changes a person’s sex for the purposes of the Equality Act. Exclusion of those of a different biological sex but with a GRC is more difficult. The threshold for exclusion is higher.

It may be that you are sanguine about the implications for those who need to use single sex services based on biology for reasons related to faith or trauma, and for the implications relating to the comparators in sex discrimination and equal pay. But if you do so I would like you to vote in an informed way – knowing that there are consequences for the Equality Act and the way it operates as a direct result of this reform.

During the stage 1 report the committee took the view that there are no conflicts of rights arising from this bill. Such a view disregards the operation of equality legislation. It disregards the case law on equality legislation which indicates there is no hierarchy of protected characteristics, but acknowledges that the whole scheme of the equality legislation is because there are conflicts between protected characteristics.

There are other issues. You will have received correspondence on a lot of them. The legislation changes positions for 16 year olds where the Age of Legal Capacity (Scotland) Act 1991 provides a way in most where until someone is 21 many legal decisions a 16 or 17 year old reaches can be reversed (the debate yesterday appeared to suggest little awareness of this provision when considering age). People will have raised issues on the Cass review into gender identity services and the new NHS england guidance. I do not know enough about that to comment.

The issues I raise above about the interaction with the Equality Act 2010 and what – as a result of a decision last week on which MSPs for reasons best known to the committee did not take evidence in an emergency session where evidence was heard from a previous witness for the second time – the implications of that interaction between the bill and the Equality Act 2010 are.

They go to the heart of this legislation. I ask that you consider these in reaching your views on the bill and determining how to vote.

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Scott Wortley

Law lecturer. Interest in Scots property law, conveyancing, debt and insolvency, statutory interpretation and legislation.