The Gender Recognition Reform (Scotland) Bill: Time for the United Kingdom to Learn from Other Federal Systems?

Stephen Tierney

Edinburgh Law School

The Scottish Government’s Gender Recognition Reform (Scotland) Bill seeks to make it easier for people to change their legal gender. To this end it attempts to amend the Gender Recognition Act 2004, a statute passed by the Parliament of the United Kingdom. 

The Scottish Parliament has the authority to amend UK statutes as they apply in Scotland in respect of devolved matters, but on 17 January 2023 the UK Government invoked s 35 of the Scotland Act 1998 to stop the bill from receiving Royal Assent, the first time s 35 has been used. Under s 35 a UK minister is empowered to make an order effectively blocking a bill where the Government believes it “would have an adverse effect on the operation of the law as it applies to reserved matters.” The UK Government’s concern relates to “equal opportunities”, which is a reserved matter, and in particular the operation of the UK-wide Equality Act 2010. 

In this post I suggest that this controversy highlights the inchoate division of authority within devolved legislation and the need for corrections along the lines adopted by other federal systems.

What Does the Bill Purport to Do?

The Gender Recognition Act 2004 is an Act of Parliament that applies across the UK and which addresses both reserved and devolved matters. It provides that to change one’s legal sex one must first be diagnosed with gender dysphoria and undergo a two-year period of medically supervised social transition. The Scottish Gender Recognition Reform Bill would, for those born or resident in Scotland, remove the requirement to be diagnosed with gender dysphoria to change legal sex for the purposes of the Equality Act, reduce the statutory waiting time from two years to three months, and lower the minimum age for a legal sex change to sixteen from eighteen. It would also, arguably, change the meaning of the protected characteristics of “sex” and “gender reassignment” within the Equality Act 2010, which applies across the UK and is a protected enactment which cannot be changed by the Scottish Parliament. 

In a recent case the Scottish Court of Session decided that a Gender Recognition Certificate, issued under the 2004 Act, does alter one’s sex for the purposes of the Equality Act. This strengthens the argument that the Scottish Bill, in the changes it makes in Scotland to the nature and effect of such certificates, does modify the law as it applies to reserved matters.

The Bill can be seen as the latest example of draft legislation bought forward by the Scottish National Party (SNP)-Green administration in Scotland that, by accident or design, pushes against the boundaries of devolved competence – see also here and here. What is notable about this latest bill is that the subject matter of the legislation is not necessarily reserved to the UK Parliament. The Scottish Parliament has the authority to amend UK statutes as they apply in Scotland in respect of devolved matters, including the Gender Recognition Act 2004. However, the UK government has felt it necessary to use the blunt instrument of s 35 to guard against what it sees as the vital UK-wide human rights protections built into the Equality Act 2010. 

Federal approaches to reserved matters

This affair highlights the lop-sided nature of United Kingdom devolution. The Scotland Act 1998 accorded extensive autonomy to the Scottish Parliament and Scottish Government. This has been extended further by the Scotland Acts 2012 and 2016. The consequence, as noted by the House of Lords Constitution Committee in relation to the latter Act, is that a model which was originally premised upon a fairly clear demarcation of reserved and devolved competences has morphed into a much more complex mosaic with overlapping concurrent powers; duties of consultation; consent provisions; information-sharing duties; shared tax-making powers and provisions in relation to management of cross-border bodies: a situation exacerbated by the domestication of competences after Brexit. The Constitution Committee also noted in relation to the Smith Commission proposals that led to the 2016 Act: “the hitherto fairly straightforward demarcation between reserved powers and those devolved to the Scottish Parliament will become considerably less clear… and increase the risk that political and legal disputes will become a far more significant feature of these relations.” 

This process has not however been complemented by a readjustment of central power to take account of its potentially destabilising effects – see here and here. The UK Parliament retains the power under the Scotland Act to legislate even in devolved matters – s 28(7). But this power is not constitutionally satisfactory, and therefore the Sewel convention emerged to condition its use, seeking to ensure that Parliament will not normally do so without devolved consent. Furthermore, this power does not in itself restrict devolved competence. Without any adjustment to devolved power the Scottish Parliament could continue to legislate over such UK-wide legislation in a tit for tat manner. What is therefore lacking within both UK devolution legislation and jurisprudence is the type of balancing mechanisms we see in other federal systems.

There is, for example, beyond the fairly oblique s 28(7), no provision in the Scotland Act similar to a supremacy clause (such as the supremacy of federal law over länder law in Germany (Basic Law, Article 31), a paramountcy clause (such as the Constitution of India, Article 254), or a judicially-recognised principle of pre-emption: recognising the authority of the central authorities to supersede or pre-empt sub-state action, as in the USA, where state laws which conflict with federal law are “without effect”. There, a crucial test is the purpose of Congress. The power of Congress to supersede the States even applies “in a field which the States have traditionally occupied”, provided that supersession is “the clear and manifest purpose of Congress”. It is also the case that the US Supreme Court, through the 14th amendment, effectively ‘nationalised’ the Bill of Rights, applying it to the States in a way that supersedes rival claims to legislate in the area of civil rights, and imposing uniformity in the application of fundamental civil rights. 

The idea of federal supremacy or paramountcy works in a similar way to pre-emption. As International IDEA observes: 

“If supremacy rests with the national or federal level (e.g. as in Germany and India), then the area of concurrent legislative authority is essentially that which the federal legislature chooses, by non-intervention, to leave to the states; at any time, the federal level can intervene to impose its will over concurrent matters.”

Such an area typically includes fundamental rights and concepts such as equality. Also relevant to this debate are the conditions imposed in Germany upon the länder to comply with the constitution’s fundamental principles, including republicanism and democracy (Article 28(1)). This ‘homogeneity clause’ imposes a set of conditions upon länder powers that “significantly limits subnational constitutional autonomy” (Palermo and Kössler, 135). 

In light of these comparable examples it is not at all unusual that the UK-wide application of the Equality Act should be protected, nor that it should be read to supersede and hence pre-empt any attempt to modify its application in part of the UK. The fact that jurisprudence surrounding the Scotland Act 1998 has not so far moved in this direction, articulating supremacy, paramountcy or pre-emption doctrines, is perhaps surprising, and indicative of a general approach that seeks to distinguish devolution from federalism. Arguably, s 35 goes some way to filling this gap, but for the reasons noted above it is less satisfactory than a specific legislative provision or a clear statement by the courts. 

The UK government, and the Supreme Court, are each showing that they are prepared to police the boundaries of devolved competence, especially when it appears that legislation is veering overtly into reserved matters. In this latest intervention we are perhaps also seeing the assertion of a more homogeneous approach to fundamental human rights values which is the hallmark of other federal systems. The current debate exposes how the radical devolution of so many powers to sub-state institutions over the past two decades, without serious thought being given for the potentially deleterious impact of this process upon the maintenance of state policy on fundamental matters, was ill-advised and requires further correction by Parliament or the Supreme Court.

Stephen Tierney is Professor of Constitutional Theory at Edinburgh Law School and Legal Adviser to the House of Lords Constitution Committee. This post is written in a personal capacity. 

His book The Federal Contract: A Constitutional Theory of Federalism was published by Oxford University Press in 2022. An author interview about that book can be found here.

Suggested Citation: Stephen Tierney, ‘The Gender Recognition Reform (Scotland) Bill: Time for the United Kingdom to Learn from Other Federal Systems?’ IACL-AIDC Blog (23 March 2023) https://blog-iacl-aidc.org/2023-posts/2023/3/23/the-gender-recognition-reform-scotland-bill-time-for-the-united-kingdom-to-learn-from-other-federal-systems.