Scots who change gender under new trans laws risk having status ignored in England

·3-min read
Nicola Sturgeon - Russell Cheyne/Getty Images
Nicola Sturgeon - Russell Cheyne/Getty Images

People who change their legal sex in Scotland under Nicola Sturgeon’s controversial overhaul of transgender laws may see their new status ignored when they cross the border, it has emerged.

The Telegraph understands that UK ministers are considering refusing to recognise gender recognition certificates (GRCs) which would be issued under the new SNP system, which will operate under a "self-identification" model and remove any medical checks.

It is understood that UK officials are working through the implications of the policy for England and Wales, as Scottish-born people living south of the border would be eligible to apply for a Scottish certificate.

Shona Robison, the SNP minister who is pushing through the reforms, admitted on Tuesday that whether Scottish GRCs would have any force elsewhere in the UK would be a matter for the UK Government.

While it is understood a final decision has not been taken, UK officials are aware of potential problems such as Scottish-born male prisoners in English jails taking advantage of the Scottish system and then demanding to be moved to a women’s facility.

They also fear implications for schools if Scottish-born pupils in England change their legal sex, as 16- and 17-year-olds would also be able to apply, compared to 18 in the rest of the UK.

'Necessary checks and balances'

A UK Government spokesman said that the existing system had the "necessary checks and balances" and confirmed there would be "no changes" to the Gender Recognition Act in England and Wales.

If the UK refuses to recognise Scottish GRCs, it would lead to a system where a person would be officially seen by the state as male or female in Scotland, but the opposite when they cross the border into England.

A UK government source said: "It’s a complex area. It is important that the two governments continue, as they have been, to work through the detail together."

Under current rules, only GRCs granted in specified foreign countries are formally recognised in the UK. Irish certificates, where a similar system proposed by Scotland operates, carry no weight.

'Acquired gender'

Anyone born or adopted in Scotland, or "ordinarily resident" in the country, would be eligible to apply for a Scottish GRC, which entitles a holder to a new birth certificate reflecting their "acquired gender".

However, it also remains unclear whether an English registration office would issue a new birth certificate to an English-born Scottish resident if they obtained a Scottish GRC.

"Whether the UK changes its own processes is clearly a matter for them as is whether they recognise Scottish Gender Recognition Certificates," Ms Robison told a meeting of Holyrood’s equalities committee on Tuesday.

The session was twice interrupted by protests after women stood up with t-shirts that said, "Nicola Sturgeon, destroyer of women’s rights".

The Scottish Government insists its proposed model would make what it sees as a bureaucratic and invasive process for changing legal sex far simpler and has rejected claims it would threaten women’s safety or rights.

'No changes' to laws in England and Wales

However, women’s groups have insisted the changes, which would allow anyone to apply for a GRC regardless of whether they have a diagnosis of gender dysphoria, are open to abuse and could lead to wide-ranging unforeseen circumstances.

Peter Hope-Jones, head of the Scottish Government’s Gender Recognition Unit, said that under the current system Scottish registrars notify counterparts in other parts of the UK when a GRC is issued.

However, he said it would be up to them what they did with the information once the new Scottish system came into force. Informal discussions with UK officials had begun but "formal" talks had not, he said.

A UK Government spokesman said: "The UK Government has made clear that there will be no changes to the Gender Recognition Act 2004 in England and Wales, which provides the necessary checks and balances whilst allowing individuals to legally change their gender."