by Eric Clive, CBE, FRSE, Professor emeritus, Edinburgh University Law School
The Secretary of State for Scotland, a Minister of the United Kingdom government, has made an order under section 35 of the Scotland Act 1998 blocking Royal Assent to the Gender Recognition Reform (Scotland) Bill 2022, a bill passed by the Scottish Parliament with a large majority and after considerable consultation and debate. The Scottish government is challenging this order by means of a petition for judicial review. The section 35 order raises important constitutional law issues. It also has private law aspects. It is the latter which are considered here.
One of the reasons given for making the order is that having two different systems for issuing gender recognition certificates within the United Kingdom would cause serious problems. This immediately strikes a private lawyer as odd. We have had dual systems in the law of persons for centuries – in the laws on marriage, divorce, legitimacy, incapacity and other matters of personal status – and they have not given rise to serious problems. This is because the rules of private international law, even in the absence of statutory provision, did not allow them to. A personal status validly acquired in one country would, subject to a few qualifications, be recognised in the other. There is no reason to suppose that this rule is dead, or incapable of application to the personal status of gender. There is no reason to suppose that the new situation feared by the Secretary of State – that a person might be legally of one gender in Scotland and another in England – would ever arise.
That is the basic theme of a paper on Recognition in England of change of gender in Scotland: a note on private international law aspects which I have just published in the SSRN series. What follows is largely a condensed version of the main arguments set out in that paper.
A preliminary question is how we got into this situation. At present a gender recognition certificate issued under the law of Scotland has the effect of changing the applicant’s gender throughout the United Kingdom. This follows from section 9 of the Gender Recognition Act 2004, the UK statute which introduced rules on gender recognition certificates for English law, Scots law and Northern Irish law. The Scottish Parliament wanted to simplify, improve and de-medicalise the Scottish rules on the grounds and procedure for obtaining a certificate, as it can competently do because gender recognition is not a reserved matter, but can have had no interest in denying Scottish certificates recognition in England. This unfortunate result seems to be a side effect of the tendency of British legislative drafters to draft by reference to sections rather than situations. Instead of saying that a change of gender under the law of one part of the United Kingdom is recognised in other parts of the United Kingdom, the 2004 Act provides in effect (although this only becomes apparent on a careful reading of a paragraph in a definition section near the end of the Act) that a certificate issued under particular sections will be recognised. When those sections are repealed and replaced for Scotland, the English rule on recognition ceases to apply to certificates issued under the new Scottish sections. Both governments in their published arguments accept that the existing statutory scheme for mutual recognition would no longer apply if the Scottish Bill came into force. That means that it is necessary to consider what the position would be in the absence of this statutory regulation.
A second preliminary question is whether gender is a personal status of the type envisaged by the traditional private law rules. The paper argues that it is and that indeed it is the prime example of a categorisation of individuals based on characteristics which can be said, in words quoted by Lord Lloyd-Jones in A and B v Criminal Injuries Compensation Authority [2021] UKSC 27 at para 42, to be “innate or inherently linked to the identity or the personality of the individual”.
The main part of the paper considers the authorities on the basis of which it can be said that there is a general rule of private international law that a personal status validly acquired in one country will be recognised in others. Reference is made to a recent (September 2021) Resolution of the prestigious Institute of International Law to which Hans van Loon kindly directed my attention. It is on Human Rights in International Law and it provides in article 10 that:
Respect for the rights to family and private life requires the recognition of personal status established in a foreign State, provided that the person concerned has had a sufficient connection with the State of origin … as well as with the State whose law has been applied, and that there is no manifest violation of the international public policy of the requested State ….
The other authorities considered are decisions and dicta in United Kingdom cases, mainly English cases but including two House of Lords cases from Scotland. The first of these is Warrender v Warrender (1835) 2 Sh & McL 154 where Lord Brougham observed that
a marriage, good by the laws of one country, is held good in all others where the question of its validity may arise.
The second is Administrator of Austrian Property v Von Lorang 1927 SC (HL) 80 where the theory that a judgment altering status should be treated as a judgment in rem binding against all the world, which had already been applied to divorce decrees, was applied by the House of Lords to decrees of nullity of marriage granted by the court of the parties’ domicile, Lord Dunedin observing that “celibacy is a status, just as much as marriage”.
Even more interesting than the cases on marriage and divorce are the cases on legitimacy and legitimation, where there are some fine pronouncements by English judges on the recognition of a status once validly acquired. My favourite is one by James LJ in re Goodman’s Trust (1881) 17 Ch D 266 at 296 where, after pointing out that the question was one of international comity and international law (what we might now call private international law), he continued:
According to that law as recognised, and that comity as practised, in all other civilized communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin – the law under which he was born. It appears to me that it would require great force of argument …. to justify us in holding that our country stands in this respect aloof in barbarous insularity from the rest of the civilized world. On principle, it appears to me that every consideration goes strongly to shew, at least, that we ought not so to stand.
The conclusion is that it would be difficult for any court to say that the starting point was not that a personal status validly acquired in one country would be recognised in others.
Four qualifications to that general rule are then considered – public policy, a contrary statutory provision, an impediment (like incapacity) going to an essential matter rather than form or procedure; and a lack of sufficient connection. The conclusion is that none of them would be likely to be of much, if any, practical significance in relation to the recognition in England of a change of gender validly achieved under the law of Scotland.
The Secretary of State’s reasons for making his section 35 order are then considered in the light of the above conclusions. His belief, stated in paragraph 4 of Schedule 2 to his order, is 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.
The first of these is the category of supposed adverse effects caused by having a dual system. This is the important one, because the other two seem to boil down to a concern that there might be more certificates granted and that a wider category of people could get one, changes which are the point of the reform and with which all reserved areas of law should be well able to cope. In relation to the dual system category, the Secretary of State claims that there could be difficulties, for example, for single sex clubs or associations, in operating the Equality Act 2010:
they could have different membership in different parts of the United Kingdom.
He also claims, perhaps more significantly, that:
The creation of a dual-system has serious adverse practical consequences on the operation of the law as it applies to the administration of tax, benefits and State pensions which are managed by integrated systems across the United Kingdom.
However, if changes of gender under the law of Scotland were recognised in other parts of the United Kingdom there would be no such adverse consequences at all and a major plank of the Secretary of State’s reasoning crumbles away.
There is a final point on the private international law aspects of the Gender Recognition Reform (Scotland) Bill, which is not developed in the paper. It is that the rules in the Scottish Bill are more sophisticated and principled than the existing rules in the Gender Recognition Act 2004. The Scottish Bill has, in section 2, rational rules on sufficient connection (essentially birth registered in Scotland or ordinary residence in Scotland). The 2004 Act has none. The Scottish Bill has, in section 8, a provision on the recognition of changes of gender under the laws of other parts of the United Kingdom which is drafted by reference to situations rather than sections and is in readily understandable form. The corresponding provisions in the 2004 Act have the twin faults, as noted above, of excessive specificity and confusing obscurity. The Scottish Bill has, again in section 8, a rule on the recognition of overseas changes of gender which is in accordance with internationally recognised principles. The 2004 Act goes in the opposite direction. It provides in section 21 that:
A person’s gender is not to be regarded as having changed by reason only that it has changed under the law of a country or territory outside the United Kingdom.
This is alleviated by provisions which allow those who have changed gender under the law of an approved overseas country to use a simpler procedure for obtaining a certificate under the Act but still looks like the “barbarous insularity” that James LJ criticised in 1881.
