Nicola Sturgeon’s controversial plan to allow people to self-identify their legal gender in Scotland risks “confusion” about their status in the rest of the UK and the services they can access, the equalities watchdog has warned.
The Equality and Human Rights Commission (EHRC) wrote to both the UK and Scottish governments with a list of examples of the cross-border “uncertainty” that could be created.
The watchdog warned there would be “implications for the operation of the Equality Act”, which outlaws sex discrimination, regardless of whether the UK Government accepted Gender Recognition Certificates (GRCs) issued in Scotland under the new system.
If the UK Government refused to do so, it warned that “practical difficulties or confusion are likely to arise in cross-border situations”, such as where a person lived in Scotland but worked for an employer based in England, Wales or Northern Ireland.
Similarly, it warned that trans people would face difficulty over their “legal status and rights” if they could obtain a Scottish GRC because they were born north of the border, but lived elsewhere in the UK.
Employers and “service providers” in England and Wales face problems in determining a Scottish person’s legal gender, the EHRC warned, unless they take the potentially “intrusive or offensive” step of demanding to see a GRC or birth certificate.
The watchdog urged the UK and Scottish governments to “work constructively together” to try and resolve the litany of potential cross-border problems “before this legislation proceeds”.
The Christian Institute said the intervention highlighted the “impossible position Scotland would be in by going it alone” and warned the Gender Recognition Reform (Scotland) Bill would create “trans tourism” to Scotland.
The first Holyrood debate on the Bill is scheduled for October 27. It would allow Scots aged 16 and upwards to self-identify as their chosen gender without a medical diagnosis of gender dysphoria.
It would also cut the time in which someone must live in their “acquired gender” from two years to only six months.
SNP ministers forged ahead with the Bill despite the EHRC previously warning it could harm “measures to address barriers facing women” and arguing the existing system struck the right balance.
Baroness Kishwer Falkner, the watchdog’s chairwoman, wrote to Shona Robison, the SNP’s Equalities Secretary, Nadhim Zahawi and the other devolved administrations expressing further concerns about the changes.
Calling for “greater clarity” in key areas, she said that “it is assumed that a wider group of trans people” who may not meet the current UK criteria for a GRC could switch gender in Scotland.
But she warned the changes could affect the operation of laws over sex discrimination across the UK, including equal pay, gender pay gap reporting and measures to address disadvantages experienced by women.
EHRC’s ‘credibility’ attacked
She said that ministers must also “consider the implications of the proposals for the rights of children and young people in England and Wales, including 16 and 17-year-olds with Scottish GRCs in other parts of the UK”.
Simon Calvert, director of the Christian Institute, said non-Scots would only have to live north of the border for three months to apply, arguing: “A university student could apply after just one term. It also applies to Scots living elsewhere.
“So a 16-year-old Scot living in Doncaster could get a birth certificate saying he was born a girl and try to use it to force his English school to allow him to use the girls’ facilities.”
Murray Blackburn Mackenzie, a policy analysis group critical of the proposals, said: “MSPs across all parties need to take seriously this major intervention from the UK’s equality watchdog.”
But Colin Macfarlane, director of Stonewall Scotland, attacked EHRC’s “credibility” and argued that cross-border recognition of Scottish GRCs “would not be difficult given that the UK already recognises equivalent certificates from all EU/EEA countries”.
He added: “The commission has failed to provide any credible evidence as to why Scotland would be an outlier if these reforms are passed.”
A Scottish Government spokesman said: “We have received the letter and will respond in due course.”