Thread by @LordCFalconer

The s35 Statement of Reasons has now been published. It identifies 3 sets of reasons why the Sec of State considers the GRR Bill would have an adverse effect on the operation of reserved matter law namely equal opportunities.

First because the Scottish GRC will only be recognised in Scotland and therefore someone could be one gender in Scotland and another in the rest of the UK. This could lead to administrative difficulties for example in the administration of benefits.

The administrative difficulties obviously have to be balanced against the benefits to be obtained to the trans community in having much easier access to GRCs. The level of administrative difficulty will depend on the increase number of Scottish GRCs being issued.

Scottish Ministers estimated there would be an annual increase from 30 to 250/300. SOS says the figure is uncertain but that the country with the closest system to the GRR has an average of 550 per year. Even taking the figure of 550 the administrative difficulties are minimal.

In any event that is The nuclear option of s35 couldn’t reasonably be triggered by the administrative inconvenience (which would be unlikely to apply in most cases) of having special files for 525 people’s benefit records.

The second category of adverse effects in the statement of reasons is said to be increased risk of fraudulent applications. The process is easier so the risk of fraudulent or malign applications is increased.

But in the context of 525 additional applications, the vast majority of those are likely to be genuine.

The authorities can monitor applications and the Chief Constable is able to inform the Registrar General of any person in respect of who they make a sexual protection order application so the RG will not grant them a GRC, the risk of fraud does not possibly justify s35

The Statement of Reasons (at p.7) identifies particular concern about bad actors being able to get a GRC and then try to circumvent safe space teas exclusions set up legitimately under the Equality Act.

But the fact that a person has a GRC does not prevent their exclusion from a safe space. Those providing safe spaces will be aware of the conditions for a Scottish GRC. They can require more protections from those with Scottish GRCs if appropriate.

The final category of adverse effects in the Statement of Reasons is said to be in relation to the operation of the Equality Act, four of which effects are said to already exist but will be made worse, and one (the effect on admissions to single sex schools) is said to be new.

On the 4 effects said to be made worse the only one of any real significance is the one concerning associations. There is no exclusion within the Equality Act which would allow a single sex association to exclude a person with

a GRC from membership of the association. Already associations such as those which provide support for women victims of sexual violence would be guilty of gender assignment discrimination if they refused membership to biological man with GRC making her legally a woman.

The possibility of some proportion of the extra 525 applicants seeking to join such an association seems an utterly unsustainable basis for s35

Finally the new asserted adverse effect under the Equality Act namely the effect on Single Sex Schools. A single sex school in Scotland could not refuse entry to a person with a GRC in the gender of the school.

The school could refuse entry if separately from gender reassignment there were grounds for refusal. This obviously will only apply to people of school age.

It will effect probably a very small proportion of the 525 - those of 18 and under who might want to go to a single sex school who were suitable for selection. And on what basis should that cohort be refused entry?

If they had some malign intent they would not be eligible. If they were eligible they shouldn’t be discriminated against.

The Statement of Reasons di not justify the use of s35