Rishi Sunak has been told he risks “re-toxifying” his government’s record on LGBTQ+ rights and introducing “an effective trans travel ban” after the equalities minister announced a review of countries whose process for changing gender on legal documents is recognised by the UK.
Kemi Badenoch notified the Commons on Monday of plans to update the list of approved countries and territories whose systems for gender recognition allow individuals with certificates obtained there to use the fast-track process when seeking a gender recognition certificate (GRC) in the UK.
She suggested that recognition would be withdrawn from places “where there is a clear indication that the country now no longer has a system at least as rigorous as those in the Gender Recognition Act 2004”.
In recent years a number of countries have simplified the process by which transgender individuals can legally change their birth certificates, with some introducing a process known as self-declaration, which was recently approved amid some controversy by the Scottish parliament. People with certificates from countries excluded from the list have to apply for a UK certificate separately.
The move comes as the deadline approaches for Westminster officials to decide whether to deploy the “nuclear option” of prohibiting Holyrood’s gender recognition bill from going for royal assent, after Scotland became the first part of the UK to introduce a self-identification system just before the Christmas recess.
The UK’s Scotland secretary, Alister Jack, said he could invoke section 35 of the Scotland Act, which in effect gives him a veto on laws he believes have an impact on constitutionally reserved matters – a decision that could set the stage for a bitter constitutional clash.
Responding to Badenoch’s announcement, Nancy Kelley, the chief executive of Stonewall, and Colin Macfarlane, the LGBTQ+ rights campaign’s Scotland director, said: “Ending reciprocal recognition of gender recognition certificates from countries that support trans people changing their legal gender using a self-determination model is a disgraceful low for the UK government’s approach to LGBTQ+ rights.
“This comes as the UK government considers challenging the Scottish government’s mandate to implement the gender recognition reform bill, a bill that was passed with overwhelming cross-party support from MSPs in December 2022.
“Trans people from countries like Canada, Australia and New Zealand have had their gender recognition certificates respected by the UK for years. Seeking to end this system is an extraordinary move, not based on evidence or experience, that will effectively serve as a ‘trans travel ban’.”
Kelley and Macfarlane said these combined moves also sent the message “that the UK government sees trans people as a threat to be contained, not citizens to be respected”, adding that “20 years on from the repeal of section 28, the prime minister risks re-toxifying his party’s brand by repeating historic mistakes”.
A Cabinet Office spokesperson said transgender people “have not and will not be banned” from entering the UK. “The Government is merely ensuring that individuals who can access the UK’s fast-track gender recognition system, are from countries with at least equal checks and balances to the UK.”
The fast-track overseas route means that an applicant with legal gender recognition from an approved country does not, for example, need to provide medical reports when applying for a GRC in the UK.
The spokesperson added that the update was not retrospective: “No one is going to move from having recognition in the UK now to not having it. If you’ve got a GRC, you still will have one.”
In late December, the Scottish government hailed a “historic day for equality” after MSPs approved plans to make it easier and less intrusive for individuals to legally change their gender, extending the new system of self-identification to 16- and 17-year-olds for the first time.
The final vote followed an unprecedented two days of acrimonious and often emotional debate as members worked across parties and past midnight on more than 150 amendments to address concerns about abusive males potentially taking advantage of the new system, and its impact on UK equality law.
The Scottish government has said any attempt by the UK government to veto the law would be “vigorously contested”.
Later on Tuesday, the Welsh first minister, Mark Drakeford, said that he planned to approach the UK government for the powers to introduce a gender recognition bill similar to that passed at Holyrood.
Drakeford told the Senedd he has spoken to Sturgeon about the bill and was “surprised” by the UK government’s reaction. “They are threatening to use a power that has never been used in the whole history of devolution,” he said.