In this paper Dr Michael Foran, School of Law, presents the argument that the Scottish Gender Recognition Reform Bill, which aims to change the law regulating legal sex change for those born or resident in Scotland, will alter the law relating to equal opportunities across the United Kingdom and the UK Government is within its legal rights to make a section 35 order prohibiting the Bill from gaining royal assent in its current form.

He argues that "On the current understanding of the law, the Equality Act depends upon the Gender Recognition Act to set out the conditions for inclusion within the categories of male and female for the purposes of its provisions. If those conditions are changed, as the Scottish Bill purports to do, that will modify the operation of the Equality Act and so will modify the law as it relates to the reserved matter of equal opportunities."

Consequently, "The UK government is within its legal rights to make a section 35 order prohibiting the Bill from gaining royal assent in its current form." 

Additionally, "there are very complicated legal questions that need to be resolved if this Bill is to be workable. Additional time to sort out these complexities would be of great value in this context. Action is needed on the part of the UK and Scottish governments to resolve these issues and bring coherence to the law in this area. A section 35 order will give both governments the time needed to address issues which will affect both the operation of reserved matters in Scotland, and the implications that this will have for the rest of the UK."

Get the full paper on the Policy Exchange website

First published: 16 January 2023

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