‘Not too late’ to save gender recognition Bill – Lord Falconer

It is “not too late” to save Scotland’s gender recognition legislation if an agreement can be reached on the way forward, former Lord Chancellor Charles Falconer has said.

The Labour peer said the use of Section 35 to block the Gender Recognition Reform Bill is “not good for devolution”.

He and other legal experts gave evidence to Westminster’s Women and Equalities Committee on the Bill on Tuesday.

There was disagreement on the panel, with two members agreeing that UK ministers were right to block the Scottish Bill and two taking the opposite view.

The UK Government used powers under the Scotland Act to block Holyrood’s Gender Recognition Reform Bill from becoming law, triggering a constitutional dispute.

Lord Falconer said: “At the point that Mr Alister Jack, the Secretary of State, exercised Section 35, he said he was willing to listen to discussions to try and change the Bill.

“There must be scope for there to be further discussions between the UK executive – because the UK executive used the power – and the Scottish Government, the Scottish Parliament to try to reach some agreement on what changes could save the Bill. It’s not too late.”

He said it is “not good for devolution that Section 35 is used”, noting that it has not been employed before.

However, Dr Michael Foran, a lecturer in public law at Glasgow University, said the UK Government was correct to use Section 35, arguing the Scottish Bill would impact the operation of the Equalities Act across the UK.

He challenged the notion that Section 35 was a “nuclear option”, saying it “opens the door for negotiation that would not be possible if Section 35 had not been used”.

Along with barrister Naomi Cunningham, he argued the cohort of people who would have gender recognition certificates would change if the Bill became law.

They argued this is more important than any increase in the number of people with gender recognition certificates, saying a different group would have “keys” to certain provisions designed to be for women only.

Ms Cunningham said: “I don’t know – the Scottish Government doesn’t know, the UK Government doesn’t know – what the numbers are going to be.

“What we do know for a fact is that the Bill radically changes the eligibility criteria for being given a copy of this key.”

Barrister Robin White referred to her own experience of transitioning, saying arguments that differing systems of gender recognition would create administrative difficulties in the tax system are “nonsense”.

She said: “I practise under my female name, I pay my taxes under my old gender.

“The IT stuff we heard about earlier, there is a practical example of why it’s nonsense, because I have one tax number and I’ve paid my taxes perfectly happily.

“But I appear to be two different genders if you look at the different places for me in the tax records.”