What does Scotland’s Gender Recognition Reform Bill mean for employers?

The Gender Recognition Reform (GRR) Bill was passed by MSPs in Scotland on 22nd December. It makes it quicker and easier for individuals in Scotland to gain legal recognition of their transition from their birth sex to an acquired gender, cutting the waiting time from two years to three months and removing the need for a medical diagnosis of gender dysphoria.

The latest hurdle for the implementation of the Bill is the UK Government’s announcement to block the Bill from getting Royal Assent due to concerns surrounding wider Equality laws which are decided by Westminster, not devolved to Nations. An important decision to block it was announced this week from the UK Government but Scotland is will ‘vigorously contest’ the opposition to the Bill.

Whilst the constitutional row on the matter continues, with inevitable court intervention, Employment Solicitor at WorkNest, Kirstie Beattie, explains what it could mean for employers and the workplace.

“As the news around the Bill continues, care should be taken to monitor any workplace discussion about what is often an emotive topic. All employees should be trained on dignity at work and inclusive language. If the Bill is enacted, we will potentially see more Scottish employees obtaining GRCs (Gender Recognition Certificates) with greater ease so training should include guidance on the importance of referring to their colleagues by their acquired gender and omitting use of their previous name. Failure to respect the rights of trans colleagues could be a serious disciplinary matter.

“Employers should not request a copy of an employee’s GRC. Doing so could amount to discrimination under the Equality Act 2010 as it involves a difference in treatment because of the person’s trans status. In the workplace, it has always been the case that a trans person should be free to use the facilities appropriate to the gender in which they present and they should not be told to use disabled facilities.

“The Bill could also pose a problem for people undergoing right to work checks who have changed gender yet may not have updated their passports or identity documents to reflect the change. Employers must check for consistency and if the photos provided by an individual are not consistent, or the names do not match, this can be an issue. Ultimately, the employer must reasonably satisfy themselves of the reason for any discrepancy and retain evidence of how they satisfied themselves, such as a certificate of deed poll for a name change.

“Arguably there is a gap in the UK’s ‘right to work’ check process when it comes to trans employees which ought to be addressed as this does amount to a difference in treatment because of gender reassignment and therefore there are risks under the Equality Act 2010. These risks must be balanced therefore against the need to prevent illegal working, the penalties for which are high.

“In the recent case of For Women Scotland Ltd v Scottish Ministers (13 December 2022), the Court of Session has given an opinion that the definition of “woman” in the Equality Act 2010 must include trans women with a gender recognition certificate for the purposes of ensuring gender balance on public boards in Scotland. The court held that the meaning of sex in the Equality Act 2010 “is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex. Applying that logic, treating a trans man or woman differently because of their sex, for example in relation to the provision of services or employment opportunities, will amount to discrimination.”