The Gender Recognition (Scotland) Bill (GR (S) Bill), which seeks to streamline the process by which transgender individuals in the UK can legally apply to change the gender listed on their birth certificate, completed the final stage of the Scottish legislative process in December 2022.

However, on 16 January 2023, the Secretary of State for Scotland, Alister Jack, made an order under Section 35 of the Scotland Act 1998 blocking the GR (S) Bill from receiving Royal Assent. The Scottish secretary said that "the GR (S) Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales". For example, equal pay was identified as an area which could be adversely impacted by the creation of a dual gender recognition system. This is because a UK-wide employer would have employees who could not use a colleague as a comparator in an equal pay claim if it were brought in Scotland. However, it could do so in England (and vice versa).

The Section 35 Order means that the GR (S) Bill cannot proceed in its current form and would need to be amended and presented for reconsideration in the Scottish Parliament if it is to continue. This is the first time that the power under Section 35 has been used in almost 25 years of devolution.

Background

By way of background, since 2004, the process for legally changing one's sex in Britain has been regulated under the UK-wide Gender Recognition Act (GRA). The GR (S) Bill seeks to amend that Act by, principally, introducing a self-declaration system for gender recognition. This legislative change is made possible by the fact that gender recognition is a devolved matter in the UK.

The GR (S) Bill: content

Below is a comparison of the provisions under the separate systems:

The GR (S) Bill's interplay with UK law

Some opponents of the GR (S) Bill have raised concerns with the legislation from a practical perspective. Indeed, as the proposed amendments to the GRA would only apply in Scotland, an individual could obtain a gender recognition certificate and be legally identified as, for example, a man in Scotland. However, because other legal forms of identification are governed by UK government agencies, their passport and driving licence may reflect their birth gender.

In workplace situations, this could lead to issues in the content of immigration and right to work checks, where employers are required to review and verify employees' official identification documents. In these circumstances, employers should take reasonable care to satisfy themselves that the official documents provided are indeed valid and genuine, while taking into consideration any discrepancies in gender markers which can be explained by reference to the employee's Gender Recognition Certificate (GRC).

Existing gender reassignment protection in employment

Whether or not a GR (S) Bill will eventually receive Royal Assent remains to be seen. However, below we take a look at the existing protection for transgender individuals in the context of employment.

• Duty not to discriminate because of gender reassignment

Gender reassignment is already a protected characteristic under the Equality Act 2010. This means that employers currently have a legal duty not to discriminate (and to prevent discrimination) against a person on the grounds of gender reassignment.

It can be a common misconception that only those who have undergone gender reassignment surgery or received medical treatment, or who have been granted a GRC, benefit from protection under the Equality Act.

Rather, the law provides protection on a wider basis than this. Legal recognition of an individual's "acquired" gender is not a prerequisite to protection from discrimination. A person who is proposing to undergo, is undergoing, or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex, will be deemed to have the protected characteristic of gender reassignment and will, therefore, be eligible for protection under the Equality Act.

• Duty not to disclose information relating to gender recognition applications

Under the GRA, it is a criminal offence for anyone who has acquired (in an official capacity) information relating to a transgender person's gender recognition application to disclose that information to a third party. There are limited exceptions to this requirement including:

• where the individual has agreed to the disclosure of the information; or
• in certain prescribed circumstances (e.g. disclosure for the purpose of preventing or investigating crime, or for use in legal proceedings).

This means that starting from the earliest stages of recruitment, employers must ensure that they do not speak to others about an employee's, or candidate's, previous gender. Importantly, there is no requirement for the employer to have intended to disclose the information, and any disclosure outside the limited exceptional circumstances may amount to an offence being committed. Employers should, therefore, be aware of and take this duty seriously, not least due to the criminal liability consequences.

How employers can demonstrate a clear commitment to diversity and inclusivity

Beyond protecting employees against discrimination on the basis of their gender identity, employers could consider looking at whether there are any steps they could take in the workplace to demonstrate a commitment to supporting all of its employees, including transgender, non-binary and gender fluid individuals. For example:

• Training

A fear of using the incorrect terminology means that many individuals are reluctant to discuss gender identity at all. However, if the GR (S) Bill is eventually passed, it is likely that more individuals will be able to obtain GRCs, making training to employees on the legal framework surrounding transgender rights and on wider topics, such as gender identity, dignity at work and inclusive communications, all the more important

• Policies

Employers could review and update their employment policies as necessary to ensure they are inclusive of all staff. For example, employers could consider the extent to which their parental leave policies support all parents of new children, regardless of their gender.

Some employers have also introduced "Transitioning at Work" policies, which seek to clearly outline avenues of support within the workplace for transitioning employees, such as counselling services and access to the business's private medical insurance providers (where available). It is also common for employers to include a clear statement of commitment to supporting all employees through their gender transition. 

What's next?

The Section 35 intervention to block the GR (S) Bill does not necessarily mean that it is the end of the road for the proposed Scottish reforms. Whether or not a version of the GR (S) Bill eventually becomes law, employers have existing legal duties and obligations in relation to their transgender and/or transitioning employees. It is important that employers are aware of these and do not fall foul of the legal requirements. There are also a number of clear steps employers can take to boost diversity and inclusivity within their culture to ensure all employees are respected and feel valued.