UNITED KINGDOM STATUTORY INSTRUMENT
2023 No. 41
Constitutional Law
Devolution, Scotland
Gender Recognition
The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023
Made 17th January 2023
Laid before Parliament 17th January 2023
Coming into force 18th January 2023
The Secretary of State makes the following Order in exercise of the power conferred by section 35(1)(b) of the Scotland Act 1998.
In accordance with section 35(3)(a) of the Scotland Act 1998, this Order has been made during the period of four weeks beginning with the passing of the Gender Recognition Reform (Scotland) Bill.
S-1
Citation, commencement, extent and interpretationCitation, commencement, extent and interpretation
1.—(1) This Order may be cited as the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 and comes into force on 18th January 2023.
(2) This Order extends to England and Wales, Scotland and Northern Ireland.
(3) In this Order, references to “the Bill” are references to the Gender Recognition Reform (Scotland) Bill as passed in its final stagein the Scottish Parliament on 22nd December 2022.
S-2
Prohibition on submission for Royal AssentProhibition on submission for Royal Assent
2. The Presiding Officer is prohibited from submitting the Gender Recognition Reform (Scotland) Bill for Royal Assent.
Relevant Provisions
3. Schedule 1 lists provisions of the Gender Recognition Reform (Scotland) Bill which make modifications of the law as it applies to reserved matters, and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.
Statement of Reasons
4. Schedule 2 states the reasons for making this Order.
Alister Jack
Secretary of State
Office of the Secretary of State for Scotland
Dover House
London
At 12.25 p.m. on 17th January 2023
SCHEDULE 1
Article 3
RELEVANT PROVISIONS OF THE GENDER RECOGNITION REFORM (SCOTLAND) BILL
Section 2 (Persons who may apply)
Section 3 (Notice to be given on receipt of application)
Section 3A (Guidance, advice and support for young applicants)
Section 4 (Grounds on which application to be granted)
Section 5 (Statutory declarations and other evidence in relation to marriage or civil partnership)
Section 6 (Certificate to be issued)
Section 8 (Gender recognition obtained outwith Scotland)
Section 16 (Further modification of enactments)
Schedule, Part 1 (Gender Recognition Act 2004), paragraphs 2 and 9
SCHEDULE 2
Article 4
REASONS FOR MAKING THIS ORDER
Identification of the modifications of the law as it applies to reserved matters
1. The provisions of the Bill listed in Schedule 1 make modifications to the Gender Recognition Act 2004(the “2004 Act”) as it applies to the reserved matters of “Fiscal, economic and monetary policy”, “Social security schemes” and “Equal opportunities”. The modifications to the 2004 Act significantly alter how an applicant can be issued with a gender recognition certificate under Scots law and the process by which a person who has obtained overseas gender recognition is to be treated as if they had been issued with a full gender recognition certificate. Section 9 of the 2004 Act provides that where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender.
2. The 2004 Act applies to the reserved matter of “Equal opportunities” through its interaction with the Equality Act 2010(the “2010 Act”). A full gender recognition certificate has the effect of changing the sex that a person has as a protected characteristic for the purposes of the 2010 Act. This is subject to a contrary intention being established in relation to the interpretation of particular provisions of the 2010 Act.
3. The modifications of the 2004 Act also apply to the reserved matters of “Fiscal, economic and monetary policy” and “Social security schemes”.
Secretary of State’s assessment of adverse effect on the operation of the law as it applies to reserved matters
4. The Secretary of State believes that the modifications to the 2004 Act, as it applies to reserved matters, would have three categories of adverse effect on the operation of the law as it applies to the reserved matters identified. These are:
(a) the impacts of the creation of two parallel and very different regimes for issuing and interpreting gender recognition certificates within the United Kingdom;
(b) the impacts that removing safeguards could have on safety, in particular that of women and girls, given the significantly increased potential for fraudulent applications to be successful;
(c) the impacts on the operation of the 2010 Act that result from the change to a person’s protected characteristic of sex, particularly given the expansion of the cohort of people able to obtain a gender recognition certificate.
5. The Secretary of State considers that each reason articulated individually amounts to an adverse effect which justifies the making of this Order.
Adverse effects arising from the creation of different regimes within the United Kingdom
6. A gender recognition certificate issued under the terms of the 2004 Act as it would be modified by...
