Former Advocate General weighs into Holyrood gender reform row

THE UK Government’s former chief adviser on Scots law has suggested UK ministers should block the recent controversial Holyrood Bill on gender recognition reform.

Lord Keen of Elie, a highly respected KC who served as Advocate General for Scotland from 2015 to 2020, urged them to consider the use of a power under Section 35 of the Scotland Act.

This would allow Scottish Secretary Alister Jack to stop the Gender Recognition Reform Bill passed by MSPs just before Christmas from getting royal assent and becoming law.

It would then be open to the Scottish Government to revise the legislation, which sought to simplify the process for changing one’s gender.

Lord Keen said the Scottish Government’s position was “opaque and at times contradictory” on the Bill. 

The Bill ends the need for a medical diagnosis for a Gender Recognition Certificate (GRC), cuts the waiting time from two years to six months, and lowers the eligibilty age from 18 to 16.

Advocates say this will improve a process that is degrading for trans people, while critics argue it could be abused my male predators to access previously women-only spaces.

Lord Keen makes a rare intervention in the foreword to a paper by the Glasgow University legal academic Dr Michael Foran published today by the right-wing Policy Exchange thinktank.

In it, Dr Foran argues the Bill, in conjunction with a recent Court of Session ruling in favour of the Scottish Government, has fundamentally altered equality law UK-wide. 

He argues that to clarify a highly complex situation, the UK Government should make a Section 35 order blocking Royal Assent for the Bill, allowing a pause and a rethink.

Dr Foran also effectively accuses SNP ministers of misleading parliament by claiming the Bill’s interaction with the 2010 Equality Act was minimal, saying such statements “have been mostly false” or at the very least out of line with the current legal position.

Of key importance is a Court of Session ruling by Lady Haldane in mid-December about gender representation on public boards.

Her judgment, which may be appealed, was that sex was “not limited to biological or birth sex”, and so obtaining a GRC could change a person’s sex in almost all regards.

Dr Foran said this had “profound implications” for the operation of the Gender Recognition Reform Bill, which was passed by MSPs a few days later.

He said it meant the Bill changed at least six aspects of UK law, including making it harder to exclude biological males from women-only spaces, and giving some biological males “a legal right of admission to girls’ schools which otherwise does not exist”.

In his foreword, Lord Keen did not explicitly endorse Dr Foran’s call for a Section 35 order to pause the Bill, but dropped some fairly heavy hints.

He said: “It would not only be impractical but constitutionally improper for the UK Government to permit a devolved legislature to enact a provision that had a material impact upon the operation of the law throughout the United Kingdom. 

“The immediate concern identified by Dr Michael Foran is the potential impact of the Scottish Government’s gender recognition legislation upon the operation of the Equalities Act 2010, an Act which clearly addresses issues reserved to the UK Government and which operates throughout the UK.”

He said he hoped the paper would “be noticed by those in the UK Government responsible for the operation of section 35 and those in the Scottish Government who have pressed this legislation in the face of real and widespread concerns about its impact upon the law of the United Kingdom.”

The UK Government, which must decide by next week whether to make a Section 35 order, said: “We share the concerns that others have with the Bill, particularly around safety issues for women and children. We are looking closely at these issues, and also the ramifications for the 2010 Equality Act and other UK wide legislation.

“Our concerns include the protection of single sex spaces, and the checks and balances [in] gaining a legal GRC. No final decisions have been made and we are considering our next steps.”

The Scottish Government said the Bill was within Holyrood’s powers and “any attempt by the UK Government to undermine the democratic will of the Scottish Parliament will be vigorously contested by the Scottish Government.

“We have always been clear that the Bill does not impact on the Equality Act, and the Bill as passed puts that position beyond doubt.”


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