MPs to press legal experts on impact of gender bill on UK equality law

Former Lord Chancellor Lord Falconer of Thoroton KC, Dr Michael Foran, lecturer in public law, University of Glasgow and barristers Naomi Cunningham and Robin White will all give evidence.

Lord Falconer has previously disputed that the bill does conflict with the UK Equality Act and said holders of gender recognition certificates could still be excluded from single-sex “safe spaces” if necessary. On the other hand Dr Foran has argued that it would fundamentally alter the operation of the UK act.

READ MORE: Keith Brown: Gender bill won't be reviewed on women-only spaces

The committee session follows Scottish Secretary Alister Jack's unprecedented use of a Section 35 order to veto Royal Assent of the Gender Recognition Reform Bill (GRRB), citing potential “serious adverse impact” on existing laws in the rest of the UK. 

However, the Scottish Government has disputed this claim with ministers insisting it doest not conflict with the reserved law. 

The Scottish Conservatives have written to Social Justice Secretary Shona Robison asking her to publish the legal advice the government received on the matter but it has declined.

The GRRB was passed by the Scottish Parliament on 22 December. It would lower the minimum age at which people could apply for a gender recognition certificate in Scotland from 18 to 16 years and introduce a process known as self-identification.

The reform would remove the requirement of obtaining a medical diagnosis of gender dysphoria to get a certificate and reducing the amount of time a person had to live in their acquired gender.

In a statement to Parliament on the Government’s decision to use Section 35 of the Scotland Act to prevent the Bill from gaining royal assent Mr Jack said “very senior legal opinion” is that using the mechanism is “appropriate”.

First Minister Nicola Sturgeon branded the move a “full-frontal attack on our democratically-elected Scottish Parliament and its ability to make its own decisions on devolved matters”.

READ MORE: Tories write to Robison demanding legal advice release on gender bill

She told the BBC the decision will “inevitably end up in court”, while Scottish Social Justice Secretary Shona Robison said it was a “dark day” for transgender people and for Scottish democracy, in response to an urgent question in Holyrood.

During the bill's parliamentary journey critics raised concerns the reforms could make it easier for predatory men and men with criminal convictions of violence against women to obtain a GRC and enter women only spaces such as changing rooms and female prisons to target women and greater safeguards should be in place.

An amendment to the GRRB tabled by Tory MSP Russell Findlay, which would have placed barriers in the way of convicted sex offenders being able to apply for a gender recognition certificate (GRC) was defeated by 59 votes to 64 with two abstentions.

A separate amendment by SNP MSP Michelle Thomson, who has spoken publicly of being sexually assaulted as a teenager, which would prevent someone charged with sexual crimes from applying for a GRC until after the trial, was also narrowly defeated.

READ MORE: Call for Italian style jail for trans prisoners as FM faces new storm

Instead ministers accepted a crossparty amendment from the SNP's Gillian Martin and Scottish Tory Jamie Greene that would mean anyone convicted of a sexual offence who wants to apply for a certificate will need to be fully risk-assessed.

Since the bill's passage in Holyrood a row has erupted over the placement of a transgender woman in Scotland's only female prison Cornton Vale in Stirling following convictions last Tuesday of raping two women. Isla Bryson, 31, was moved to HMP Edinburgh on Thursday following a public outcry.

The Scottish Prison Service takes account of what gender a person identifies as, as well as risk assessment issues, when deciding where a prisoner should be held.

Asked by BBC Radio Scotland today if the bill would be amended to add more safeguards for women only spaces amid concerns the measures were not sufficient, Justice Secretary Keith Brown said it would not.

"The bill was passed democratically by the Scottish Parliament. It is not Nicola Sturgeon's bill, it's not my bill, it is not the SNP's bill. It was a bill passed by parties in the Scottish Parliament," he said.

"And that had provision to allow the police to make an order which would stop someone transitioning towards achieving a GRC. So we believed that covered that."

SNP MP Angus MacNeil over the weekend joined a growing rebellion within his own party against the GRRB.

Mr MacNeil was responding to a call by another SNP critic MSP Ash Regan, who had raised concern about the possibility of another violent prisoner Tiffany Scott being transferred to Cornton Vale.

READ MORE: Ministers may consider separate trans prisoners unit after rapist row

Ms Regan tweeted: "Tiffany Scott - formerly Andrew Burns, one of the most dangerous prisoners in Scotland has gained approval to be moved to the women’s prison estate. Scott has attacked female prison officers and stalked a child from prison. No men should be placed in a women’s prison."

Mr MacNeil replied: "Ash is quite right and should have been listened to, along with others. Holyrood has to sort this mess and fast - no need for Westmin or European Courts - Holyrood's MSPs who were led to pass legislation that would entrench this have to reverse - and quickly."

Asked about Mr MacNeil's comments and whether the bill would be reviewed Mr Brown said it would not.

"We will not be reversing that bill. The bill was passed," he told BBC Radio Scotland Good Morning Scotland.

Pushed on whether it would be amended to ensure women's equality and make women's groups feel protected, he turned his attention to the row with the UK Government over the bill.

He said: "There is no indication of what the UK [Government] wants to see amended. Alister Jack is unable to articulate what change would make it acceptable. In that case we would have to conclude this is merely a political act by the UK Government. 
"There is no indication what they think is wrong with it that could be made right."

During the interview Mr Brown denied that approval had been given for Scott to move to a women's prison. 

On Sunday, the Justice Secretary announced a pause to transgender prisoners with convictions for violence against women being moved to the female estate, along with an urgent review of the handling of the Bryson case.

He said he understood that none of the five transgender women prisoners currently held in the female prison estate had been convicted of crimes of violence against women.

"This changes, as you can imagine, on a regular basis, but my understanding is there are no transgender women in the female estate that... have violence against women convictions," he told Good Morning Scotland.

Mr Brown added that, in exceptional circumstances, a trans woman could be moved to the female estate, but that would require the approval of Scottish ministers before a decision is taken.

"It will always be the case, has always been the case, similar in relation to a gender recognition certificate, that these things are not determinative of where somebody is placed - you cannot insist on that right if you're a transgender woman or man, to be placed in the estate where you want to be placed," he said.

"It will only happen as a result of a multi-party assessment, a rigorous risk assessment that goes on and that is what determines where people are placed."

Asked why this cannot be made Scottish Government policy now, the Justice Secretary stressed the importance of the ongoing Scottish Prison Service (SPS) review into the placement of trans prisoners.

"I believe that we do (have to wait for the review), I think (the SPS) have got a fantastic track record in dealing with this," he said.