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Central to the disagreement between Holyrood and the UK Government on Gender Recognition is the extent to which self identification as the basis of a Gender Recognition Certificate puts women and girls at risk from predators.
@KemiBadenoch in her interview in Saturday’s Times identifies that risk as central to the blocking of the Bill. Opponents of the Bill argue that since it permits a GRC to be obtained on the say so of the Applicant it makes fraud and therefore predatory behaviour easier.
It does make fraud in obtaining the certificate easier, but Equality Law has carefully ensured that holding a GRC is not the key to whether a trans woman has access to a women only space which is the place it is feared a predator might go.
The Equality Act (reserved law) provides a trans women can be excluded from single sex services or spaces where this is a “proportionate means of achieving a legitimate aim.” It’s the organiser of the single sex space who determine what rule to apply.
If allowing a trans woman into a safe space materially increases the risk to users of that space or deters them from using it excluding all trans women or some trans women is permitted irrespective of whether those excluded have a GRC.
For example a group counselling provider for the female victims of sexual assault could not allow any trans women (whether they hold a GRC or not) to attend if the provider judges other clients would not attend if a trans woman also attended.
This is the example given in the Equality Act Explanatory Notes to the relevant provision. If the question of whether an exclusion satisfied the proportionate means test was contested in any particular case that would be resolved by the courts.
Another example is the English prison service which allocates prisoners to a male or female prison based on their legally recognised gender, unless, balancing risks and welfare both of that prisoner and other prisoners in the estate, a different allocation is appropriate.
The choice of approach is adopted by the Prison Service to discharge their legal duty to provide a safe place for all prisoners in their custody. It’s starting point as a matter of choice by the prison service is the legal gender which will be determined where relevant by a GRC.
Although the legal gender provides as a matter of Prison Service policy the starting point, it is neither determinative nor indeed referred to in the Equality Act. The test in that Act is not legal gender.
In Scotland it would be for Scottish Prison Service to determine what their approach should be in the light of self identification GRCs.
The duty on Scottish Prison Service owed to prisoners in their custody to keep them safe will remain exactly as it is now.
They must make a risk assessment in each case of the risk to the prisoner to be allocated and to those in the allocated prison. The Scottish Prison Service gave evidence to the Scottish Parliament that unlike England the GRC is not currently their starting point.
The key point is that Equality Law now and Equality Law if the Scottish Bill becomes law equally requires a balance to be struck between the rights of a trans person to be respected in the gender of their choice and the rights of the wider population to be protected from threat.
The balancing of those two rights (whether the Bill becomes law or not) does not depend on a GRC but where on the facts the balance falls, in accordance with the proportionate means etc test. The Bill does not modify Equality Law (the relevant reserved law) in this respect.
The s35 power to block depends first on the Bill having modified “the law as it applies” to equality law, and second on the SoS having reasonable grounds to believe that those modifications would have an adverse effect on the operation of the law as it applies to equality law.
The first requirement is a legal question not dependent on the belief of the SOS. Has the law as it applies to the exclusion of trans people from single sex safe spaces been modified by the Bill? It’s doubtful that it has.
But even if it has it is difficult in the light of the legal test being unchanged to reasonably believe it has been effected adversely.
There are other grounds referred to in the SOS’s reasons for blocking the Bill. But if this ground fails in law the blocking will almost certainly fail because it is so clearly the main ground.
End of thread.
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