The United Kingdom should define sex in law

19 January 2023

Christian Concern’s Policy Researcher, Carys Moseley comments on the Gender Recognition Reform Bill passed in Scotland, and the UK government’s challenge to it.

The UK government has blocked the Gender Recognition Reform Bill passed by the Scottish Parliament. The purpose of the bill was to reform the Gender Recognition Act within Scotland to make changing gender easier there. However, the problem is that aspects of this would affect the rest of the United Kingdom, which isn’t meant to happen. There has been major public debate on how to tackle this.

Effect on operation of the Equality Act in the UK

Many organisations, indeed most of the public, and the UK government, were concerned that the Scottish law would have an effect on how the Equality Act operates across the UK. This is because under this bill, people who obtain a Gender Recognition Certificate in Scotland would not necessarily have undergone medical checks. People could move to Scotland for a short time, obtain a Gender Recognition Certificate there and then continue living and working anywhere else in the UK.

Why does this matter? This could mean men coming from Scotland could access single-sex spaces in England, Wales and Northern Ireland far too easily.

Equality law for all the UK is governed from London. On this basis, the Scottish Secretary in the UK government has the power to quash the Scottish law. The UK government has taken the unprecedented move of using Section 35 of the Scotland Act 1998 to block royal assent of a Scottish Parliament bill, as it

“(1) modifies the law as it applies to reserved matters and

(2) has an adverse effect on the operation of the law as it applies to reserved matters.”

The Gender Recognition Reform (Scotland) Act would (if it received royal assent) have had an adverse effect on the operation of the Equality Act 2010 across the UK.

Our objections to the gender recognition reform

Christian Concern has repeatedly joined others in warning that the Gender Recognition Act should not be changed, in Scotland or anywhere in the UK. Our objections for the changes in Scotland were as follows:

  • We objected to the removal of a medical diagnosis of gender dysphoria as the criterion for obtaining a Gender Recognition Act in Scotland. This would remove vulnerable and suggestible people from any kind of check-up on their mental health.
  • We objected to shortening the minimum time for living in the desired gender from two years to three months. This would make it too easy for people to go through the process.
  • We were concerned that people in Scotland should have to apply for a GRC to the Registrar General for Scotland. This would mean bypassing the requirement for a medical check, which is required when applying to the UK Gender Recognition Panel.
  • We objected to lowering the age of gender recognition in Scotland to 16. Children are too young to understand the momentous decision that they are making in choosing to ‘change gender’.
  • We noted that the proposal to penalise ‘knowingly making a false application’ for gender recognition would be unworkable. This is because there would no longer be medical checks to act as a barrier.
  • We objected to removal of powers to impose a cost for gender recognition. This was because there is a personal and social cost to the whole process, which requires a public symbol.

Could de-transitioners be at risk of prosecution?

In addition, the Scottish law would penalise a ‘false application’ with up to two years in prison. It is unclear what this could mean. It appears that this clause was inserted to penalise those later found to be men who are opportunistically identifying as transgendered for entering women’s spaces. The Chief Constable of Police Scotland would have to notify the Registrar General for Scotland if he were to apply to the court to prevent someone from obtaining a Gender Recognition Certificate. This would involve applying to the court for a sexual harm prevention order, a sexual risk order or a sexual offences prevention order.

However, it is unclear whether this clause could also be used to penalise de-transitioners for having supposedly made a ‘false’ or fraudulent application to change gender. It is not known how this could be proven, given that the bill removes the need for medical checks to be made before someone is allowed to change gender.

The battle for the correct definition of sex in Scotland

Women’s groups in Scotland and England have joined forces to fight a battle recently in the Scottish courts about the meaning of the word ‘woman’. For Women Scotland, a group that campaigns to preserve sex-based rights, took the Scottish Government to court over the inclusion of male-to-female transgender people as ‘women’ in the Gender Representation on Public Boards (Scotland) Act 2018. It won its case in Scotland’s highest court, the Court of Sessions on 17 February 2022. The judge ruled that redefining ‘woman’ and therefore sex was something only Westminster can do, as the Equality Act 2010 is UK-wide legislation. However, the Scottish Government then amended the 2018 legislation according to the Gender Recognition Act and the Equality Act. Therefore, as in the rest of the UK, male-to-female transsexuals who have a Gender Recognition Certificate are counted as ‘women’. For Women Scotland lost its appeal against this amended legislation on 13 December 2022.

In the meantime, in February 2022, Fair Play For Women lost its case to stop guidance for the Scottish Census that would allow self-identified transgender respondents to indicate their preferred sex even without having a Gender Recognition Certificate. One week later Fair Play For Women also lost its appeal against this ruling. Its case had likewise gone to the Court of Sessions. What these two parallel legal battles illustrate is that there is no legal consistency or objectivity regarding the definition of sex. The first Scottish judgment correctly acknowledged that only Westminster can deal with this.

The UK has already redefined sex

Sex was already redefined at the European level as psychological as well as biological as far back as 1989. The court case brought by British male-to-female transsexuals against Tony Blair’s government was won, and this then put pressure on the Blair government to pass the Gender Recognition Act. This, in turn, allowed transsexuals to change the sex on their birth certificates to the opposite sex, thus allowing ‘sex’ to be redefined to what a transsexual believed it to be.

As the Equality and Human Rights Commission explains, the Equality Act 2010 allows for transsexuals who have had a Gender Recognition Certificate (and who have therefore changed their birth certificates) to be recorded as ‘women’. Thus the Equality Act was part of the process of redefining sex.

Scotland has looked to the European Court of Human Rights

This is important when considering how the Scottish Government and most MSPs have approached the Gender Recognition Act. When the Scottish Government first consulted on the Gender Recognition Act reforms, its consultation document gave the legal basis for them as a recent judgment against France by the European Court of Human Rights (AP, Garcon and Nicot v France [2017] ECHR 338 (06 April 2017). France, under then Prime Minister François Fillon, did not want a gender identity law.

The Scottish government’s first consultation on the GRA, published in November 2017, said this about the case:

“The court confirmed that a requirement to demonstrate the irreversible nature of a change of appearance (such as a requirement for sterilisation or surgery) was a breach of Article 8 of the European Convention of Human Rights.”

However, what the Scottish Government did not say was that the judgment permitted Council of Europe member states a margin of appreciation as to whether or not they should require medical checks on individuals for the purpose of gender recognition. The Scottish government was not legally bound to amend the Gender Recognition Act to remove the legal requirement for a diagnosis of gender dysphoria.

The approach to Gender Recognition Certificates

The first step that the UK government took was to indicate that it would add Scotland to its list of countries and territories that do not come up to UK standards for gender recognition, namely requiring medical checks first. People who gain a Gender Recognition Certificate in Scotland would have to reapply for a new one if they move to anywhere else in the UK. Kemi Badenoch, the Minister for Equalities, issued a Written Ministerial Statement providing the groundwork.

This was a clever move as it shows the government is serious about protecting single-sex spaces in the rest of the UK, and also shows up what an independent Scotland under Nicola Sturgeon would look like. However, it would not have solved the problem of single-sex spaces in Scotland. This is why using Section 35 of the Scotland Act matters.

The UK should define sex in law

What actually needs to happen for the Equality Act 2010 to work properly across the UK is for sex to be defined in law. Only the Westminster government can do that, because it is a matter linked to the Human Rights Act 1998 and the Equality Act 2010. The problem is that this is a debate that many people want to avoid.

The common law recognises that sex is biological and cannot be changed, in a judgment handed down in 1971. Justice Ormerod annulled the marriage between Arthur Corbett and male-to-female transsexual April Ashley. If the UK government could enshrine this in statute law, and require it in all official statistics for example, this would help greatly. It would make the truth the standard for how the law operates in all spheres. Christian Concern submitted evidence to Parliament in 2020 calling for the government to define sex as biological in law.

The problem of defining ‘gender’

The clarification of what sex is in law would enable clearer thinking about what ‘gender’ is, the ‘gender’ in ‘gender reassignment’, ‘gender identity’ and so on. In its own consultation on the Gender Recognition Act in 2018, the UK government did in fact admit in passing that gender identity is a belief.

Defining sex in UK statute law would go some way towards countering the incoherent understanding of ‘gender’ and who is a woman in the Istanbul Convention on Preventing Violence Against Women and Domestic Violence, a Council of Europe treaty which the UK government ratified last July. For the UK government to be consistent and credible on who is a woman or a man, it needs to move to limit the damage done here. Otherwise it could be perceived as fudging the issue and using Scotland as a distraction from its own failings.

The debate that cannot be avoided

In conclusion, the big picture is the redefinition of sex at the European level, and how the UK has avoided having a clear definition. It is also important that two different UN special rapporteurs weighed in on opposite sides of the debate in Scotland. Reem Alsalem, the UN special rapporteur on violence against women and girls strongly criticised the reforms in a letter. Victor Madrigal-Borloz, the UN’s independent expert on protection against violence and discrimination based on sexual orientation and gender identity supported the reforms. Nicola Sturgeon disregarded the advice of the former.

However, nobody can afford to be complacent. For the UN special rapporteur on LGBT issues has enjoyed close relations with UK government ministers and officials as recently as July 2021. There are still many who want gender self-ID in the UK, and there are many areas where there is continued confusion. It isn’t enough to stop the Scottish bill. We also don’t know how judges will respond to the case, as Nicola Sturgeon has indicated that it will end up in court. It is possible that she will try to take the case all the way up to the European Court of Human Rights. The prior redefinition of sex at that level suggests this could cause serious problems for us all. The UK government should define biological sex in law now before it is too late. The truth must prevail for justice to be possible, and for the sake of stability, fairness, safety, social coherence and trust.

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