In the run-up to Christmas, you may have seen clips of some tense scenes in the Scottish Parliament as MSPs considered proposed changes that would make it easier for individuals to legally change their gender. The hotly debated Gender Recognition Reform (Scotland) Bill ultimately passed, but the issues it deals with are sure to remain the subject of debate both north and south of the border.

The Bill introduces the following changes:

• Individuals who want to apply for a Gender Recognition Certificate (GRC) will no longer need to demonstrate that they have been diagnosed with gender dysphoria – rather they will need to make a declaration that they have lived as their acquired gender for a minimum of three months before making the application.
• The right to apply for a GRC is extended to 16 and 17-year-olds – the only difference being that those in that age bracket must have lived as their acquired gender for a minimum of six months.   

It is important to note that these changes only apply to individuals who have a Scottish birth certificate and are ordinarily a resident of Scotland.

Just the week before the Bill passed, we also saw a Scottish court (The Outer Court of Session) determine that the definition of a ‘woman’ under the Equality Act 2010 must include a transgender woman with a GRC. The court also held that transgender people are protected by the protected characteristics of sex and gender reassignment. It further confirmed that an individual is protected under the protected characteristic of gender reassignment irrespective of whether they have a GRC.

These changes have not gone uncontested. Women’s rights organisations have campaigned against such changes and raised concerns about the impact the Bill could have on single-sex places in Scotland. 

What’s the impact on those in England and Wales?

For those in England and Wales concerned about what this case law and legislation means for them and their equality diversity and inclusion (EDI) commitments and obligations, the short answer is: currently, very little. The Bill only extends to those born and residing in Scotland and the Scottish Courts of Session are not binding on English courts although their decisions can be taken into consideration by courts south of the border. 

In England and Wales, the Gender Recognition Act 2004 continues to apply; only individuals over 18 can apply for a GRC and then only after living in their acquired gender for two years and with a medical diagnosis of gender dysphoria.

We’re also unlikely to see any similar reforms any time soon; the UK Government has already said that it has concerns about the new Scottish legislation and its potential effect on equality law. Ministers have indicated that they may seek to make Scottish GRCs invalid in England and Wales, or to stop the Bill receiving Royal Assent at all. If that happens, expect more news headlines and tense parliamentary scenes, as the strongly held opposing views in this area play out in the courts and our Parliaments.

For blogs on how the tribunals and courts are treading the precarious route between competing rights, please do read our blogs on the subject:

• Beliefs worthy of protection in a democratic society
• Beliefs worthy of protection in a democratic society part 2: Forstater victory
• What is your WHY? Can employers disassociate actions from gender-critical beliefs?  

For specific advice on issues relating to EDI or training materials please contact our employment team.