Naomi Cunningham: The ‘chilling effect’ of Scotland’s proposed gender recognition regime

Naomi Cunningham: The 'chilling effect' of Scotland's proposed gender recognition regime

Naomi Cunningham

The first casualty of the gender recognition regime is freedom of speech, writes barrister Naomi Cunningham.

Section 29(2)(d) of the Scotland Act 1998 provides that an Act of the Scottish Parliament is not law so far is it is incompatible with any of the Convention rights. The UK government may not be a fan of the European Convention on Human Rights in general, but it would be a mistake for it to overlook the significance of this provision in considering its response to Scotland’s Gender Recognition Reform Bill.

The bill would amend the UK’s existing Gender Recognition Act 2004 and allow anyone born in or temporarily resident in Scotland to change their sex for “all [legal] purposes” if they change their name and pronouns for three months and make a solemn promise “to live in the acquired gender” for the rest of their lives. It significantly speeds up the process of getting a Gender Recognition Certificate and removes the requirement for medical diagnosis, opening it up to a much larger and more diverse group of people.

A Gender Recognition Certificate doesn’t literally change your sex – it’s not a magic spell – but it is an extraordinarily powerful piece of paper. It enables you to have a new birth certificate issued saying that you were born the opposite sex. Your true sex becomes “protected information”, and it’s a criminal offence for someone who learns of it in an official capacity to disclose it unless one of a very limited list of exceptions applies.

The assumption underlying that protection seems to have been that those who were granted GRCs would normally strive to pass as the opposite sex – so mentioning their true sex would “out” them as trans. Therefore records (like your full tax record) that reveal the change were kept under special protection. But if – as will be the case for the great majority of those acquiring Scottish GRCs under the new conditions – your true sex is obvious to anyone who meets you, then the difference between what they see with their eyes and ears and your sex-on-paper may be information gained “in an official capacity”. That will create a chilling effect over communication or acknowledgment of facts that are fundamental to the safe and fair operation of women’s services, to anti-discrimination laws, fair sports, and to effective safeguarding of children and vulnerable adults. And because GRCs are treated as secret, the chilling effect will extend to anyone who asserts a cross-sex identity, and inhibit any systematic and accurate collection of data on sex.

The UK government could use Section 33 of the Scotland Act to refer to the Supreme Court the question whether the Scottish Parliament really has power to change who can be counted as a man and woman for the purpose of UK laws. Or it could issue an order under Section 35 and stop the bill by saying it has too many adverse effects on the operation of UK laws such as the Equality Act (or it could do both, one after the other: Read Sex Matters’ briefing on the GRR Bill (Scotland) and the UK).

The freedom of speech effects go to the fundamental question of competence.

The mechanism for changing birth certificates was considered necessary in 2004 on human rights grounds: the European Court of Human Rights in Christine Goodwin v UK (2002) had determined that for a post-operative transsexual to have to reveal his biological sex when asked to show a birth certificate for certain administrative purposes breached his Article 8 right to privacy.

Articles 8 and 10 are both qualified: they can be interfered with as “prescribed by law and … necessary in a democratic society”. The GRA in its original form sought to achieve a balance between the privacy rights of a very small group of people who were expected to have taken extraordinary steps, under medical supervision, to change their physical appearance; and the freedom of expression of those who had official dealings with them. The Scottish amendments would extend these protections to a much larger group with different characteristics, radically altering that balance. If the new balance between Article 8 and Article 10 is not fair, then the Gender Recognition Bill is incompatible with the UK’s obligations under the European Convention on Human Rights, and thus beyond the competence of the Scottish Parliament.

The adjective “necessary” in the qualification of Articles 10 and Article 8 implies the existence of a “pressing social need”. But how could there ever be a pressing social need to keep secret something that is obvious to everyone?

In Sunday Times v UK (1991), the European Court of Human Rights held that the UK government’s injunction against the publication of extracts of Spycatcher book by the Sunday Times violated Article 10, as the book was already published outside the UK, and available by mail order. As Lord Bridge of Harwich had pointed out (in a dissenting opinion in the House of Lords, correctly anticipating the outcome in Strasbourg):

“…it is perfectly obvious and elementary that, once information is freely available to the general public, it is nonsensical to talk about preventing its ‘disclosure’.”

Similarly, unless a person has taken heroic steps to change their appearance under medical supervision (and often even if they have), their sex is information that is freely available to anyone who meets them or speaks to them on the phone. Legislating against “disclosure” in this situation is fundamentally unjust.

Lord Bridge continued:

“Freedom of speech is always the first casualty under a totalitarian regime. Such a regime cannot afford to allow the free circulation of information and ideas among its citizens. Censorship is the indispensable tool to regulate what the public may and what they may not know. The present attempt to insulate the public in this country from information which is freely available elsewhere is a significant step down that very dangerous road.”

Everyone’s personal data is protected by ordinary data protection laws. Special criminal penalties for acknowledging a person’s sex if they have a GRC risks creating a totalitarian regime of censorship and fear in workplaces and institutions. That regime will preclude sensible and compassionate thought about how to accommodate those who have a personal identity at variance with their sex without undermining the rights of others, or denying reality.

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