On 17 January, the UK government released the list of its stated reasons for using veto powers against the Scottish parliament. The unprecedented move blocked the new Gender Recognition Reform (GRR) Bill. Had the bill passed, it would have removed the need for gender dysphoria diagnosis to obtain a Gender Recognition Certificate (GRC).
Part one of the Canary’s analysis examined the nature of Section 35 as a veto power and the conditions needed to trigger it. It also looked at the foundations of the argument set out by the UK government, as well as potential counterarguments Holyrood could make.
In part one, we touched on the potential problems created by Westminster’s refusal to recognise GRCs issued according to the proposed GRR Bill.
Here, we’ll continue in the same manner.
Somewhat unexpectedly, IT infrastructure requirements featured prominently in the UK government’s argument.
Again, it worked on the assumption that the rest of the UK wouldn’t recognise Scottish GRCs – which is itself a choice on Westminster’s part.
The policy document pointed out that taxes, benefits, and state pensions are managed by IT systems that encompass reserved and devolved functions. It then stated that: “Existing IT infrastructure only allows one legal sex on any record and cannot change the marker for 16 to 17 year olds. Those responsible for these systems consider that it may be unmanageable, even with considerable time and expense… to build system capability to manage a dual identity for the same individual if someone’s legal sex could be different in Scots law and the law for England and Wales.”
Of course, this is not the first that the government has used its creaking IT systems as an excuse. Even Westminster’s own footnote to this statement indicates that it has not adequately considered this potential issue either way: “If the Bill were enacted, HMRC would need to explore whether consequential changes to IT infrastructure were possible. Changes to HMRC IT can have consequential impacts on other departments due to integrated systems.”
The wording here suggests that one of the reasons for triggering the veto is that it might cause problems for IT infrastructure, but that this is as yet uncertain. However, Section 35 is the so-called “nuclear option” of devolution law. So its use for the prevention of a potential IT problem seems disproportionate at the very best.
The policy paper also goes into detail about the risk of people making fraudulent applications for a GRC in Scotland. This essentially means someone changing their legal sex without sincerity. For example, they are legally a man whilst believing themselves to be a woman, or vice versa. In particular, the paper speculates on adverse impacts for “sex-segregated spaces, services, competitive sports and occupational requirements”. It states that: “The Secretary of State does not believe that the Bill retains or creates sufficient safeguards to mitigate the risk of fraudulent and/or malign applications and believes that the reformed system will be open to abuse and malicious actors.”
It’s important to note that the GRR Bill states explicitly that there are repercussions for false submissions. These “insufficient safeguards”, according to Westminster, include “up to 2 years’ imprisonment and an unlimited fine”.
Likewise, the GRR Bill also makes specific provision for a GRC to be revoked. For example, interested parties (such as the spouse, partner or child of an individual who has applied for a GRC) can still ask that the certificate be withdrawn.
The example grounds are that: “the wrong type of GRC was issued, the application for it was fraudulent, the applicant was incapable of understanding the effect of it, or the applicant was incapable of validly making the application.”
As such, the GRR Bill is not without mechanisms or repercussions for fraudulent application. Instead, it simply removes the often-arduous and opaque panel system currently in place in the UK. Charlie Falconer – a Labour peer of the House of Lords – has also pointed out that authorities are still at liberty to monitor applications. He went on to say that “the risk of fraud does not possibly justify” the use of Section 35.
The conclusion to this section of the paper brings up the risk of some people choosing to ‘self-exclude’ from sex-segregated spaces. This is essentially an individual’s choice to evade single-sex spaces altogether. It reasons that: “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.”
This is despite the fact that repercussions for fraudulent applications remain in place. The policy paper’s anxiety rests on the hypothetical that a woman might choose not to use a single-sex space. This would be on the basis that a man might have used a fraudulent GRC to gain access.
However, the paper is also forced to acknowledge that it is already fully legal to exclude trans women with a GRC. The fraudulent possession would make no difference – both the trans woman and the fraudulent GRC holder would be excluded anyway.
As such, the policy paper is placing emphasis on the fact that an individual might not understand the law as it already exists, and so voluntarily exclude herself. It offers no argument as to why the law could not simply be made clearer, rather than using Section 35 powers to prevent it.
To be continued
So, we’ve now examined Westminster’s argument from the difficulty for IT systems. We’ve also looked at the potential for fraudulent applications, and the safeguards that remain in place, along with the potential for self-exclusion. Next, part three of this analysis will deal with the remainder of the policy document.
This focuses on the fact that lowering the age requirement for a GRC to 16 raises the question of trans pupils in single-sex schools.
*Article published in the Canary.