Transgender Rights Reforms in Scotland Blocked by British Veto
Photo Credit: Drew Angerer/Getty via The Atlantic
Dec. 22 of last year saw the passing of the Gender Recognition Reform Bill in the Scottish Parliament, which would streamline the process for trans people to change their legally recognised gender. The legislation was blocked by the United Kingdom Parliament this January, reigniting discussion about Scottish devolution and the distribution of power between the British and Scottish governments.
The Scottish Parliament was established in 1998 after a referendum and with it various powers were transferred to it from the UK Government. This process is known as devolution, the redistribution of power towards lower levels of government. Proponents of devolution assert that it better represents the people of Scotland. As devolution involves the division of responsibilities between the UK and Scottish Governments, it is inherently a collaborative endeavor in which both parties have input. The Scottish Government now has power over devolved matters such as healthcare, agriculture, and education, and the UK Government presides over reserved matters, including energy, immigration, and employment.
A UK Secretary of State retains the power to veto Scottish bills that adversely affect UK legislation under section 35 of the Scotland Act 1998. This is the first time since devolution began that this power has been exerted.
In his statement to the House of Commons on Jan. 17 preventing the bill from proceeding to Royal Assent, UK Secretary of State for Scotland Alister Jack acknowledged the lack of precedent. “The power can only be exercised on specific grounds– and the fact that this is the first time it has been necessary to exercise the power in almost twenty-five years of devolution emphasizes that it is not a power to be used lightly,” he said.
The blocked legislation would alter the legal process to obtain a Gender Recognition Certificate, or GRC. It lowers the minimum age from 18 to 16 and reduces the minimum amount of time since transition to apply from two years to three months (plus a three-month “reflection period” as a part of the process). Medical records proving that the applicant was diagnosed with gender dysphoria would no longer be required. The Bill also devolves the issuing of GRCs by transferring responsibility to oversee applications from a UK organization to a Scottish one.
The UK Government opposed the Gender Recognition Reform Bill on the grounds that it interfered with British legislation, specifically the Equality Act 2010. The statement by Jack asserted that the bill would have “adverse effects [...] on the operation of single-sex clubs, associations and schools, and protections such as equal pay.” A further policy statement laid out myriad perceived difficulties the Bill would cause, among them an “uncertainty or unawareness of pupils’ transgender status” at single-sex schools, which could, according to Jack, lead to “schools [not having] the information they need to assess safeguarding risks, including how best to support transgender pupils.”
Trans rights organizations in the UK support the proposed reforms. “We are saddened that the Prime Minister has decided to block the implementation of the Scottish Gender Recognition Reform Bill, through an order under Section 35 of the Scotland Act, for the first time in the history of devolution.” Read a statement by Stonewall, an LGBTQ+ rights organization based in the UK. “This is a piece of legislation that simply seeks to make the process for legally recognising a trans man or trans women’s gender more respectful and straightforward.” Furthermore, Stonewall contended that the Bill ``does not interact with [the] Equality Act 2010 – clarified by successful amendments from a Scottish Labour MSP.”
First Minister of Scotland Nicola Sturgeon was a staunch supporter of the Gender Recognition Reform Bill, and she became the face of the legislation to the Scottish public. As a member of the Scottish National Party (SNP), she also campaigned for Scottish independence. The UK Parliament stepping in to block the legislation was a dual assault on her politics. However, as the debate over the bill wore on, Sturgeon began to poll lower in Scotland, exacerbated by controversy over a situation in which a trans woman prisoner convicted of raping two women before her transition was sent to a women’s prison. Despite a lack of strict relevance to the reforms, this strongly polarized the discourse over transgender rights in Scotland.
On Feb. 15 Sturgeon announced her intent to resign in a reversal of her previous stated plans. She cited fatigue as well as an increasingly toxic political environment.
Previously Sturgeon had vowed to contest Jack’s decision in court. She would have had to prove that the Equality Act 2010 is not adversely affected by the Gender Recognition Reform Bill. She explained in an interview with the BBC that the court case would be defending “the institution of the Scottish Parliament and the ability of MSPs, democratically elected, to legislate in areas of our competence. In short, we’ll be defending Scottish democracy.”
The future of the reforms is now unknown. It is unclear whether her successor (to be chosen by the SNP) will continue to back the gender reform legislation or not. The BBC posited in a recent article on Sturgeon’s resignation that whoever replaces her “could choose to quietly shelve the plan to take legal action,” though they acknowledged that this was speculation.
If a newly appointed First Minister were to support Sturgeon’s GRC reform legislation, they would have to withstand the blistering criticism Sturgeon faced promoting it. A few SNP members have put themselves forward to replace Sturgeon, including Ash Regan, who resigned from community safety minister in protest against the Gender Recognition Reform Bill, Kate Forbes, who is a member of the deeply conservative Free Church of Scotland, and Humza Yousaf, who shares Sturgeon’s views on transgender rights and passed a controversial bill against hate crime in 2021.
The UK’s veto is mostly supported, or at least tolerated, by Scottish voters. In a recent poll by Lord Ashcroft, a businessman and pollster, over half of respondents said the UK Government was “within its rights” to block the legislation. Whether this speaks more to an opposition to the legislation specifically or a broader acquiescence to the UK influencing Scottish politics remains to be seen.
The UK Equality and Human Rights Commission has largely opposed the changes to the GRC process. In a letter to the Minister for Women and Equalities, Kishwer Falkner, the EHRC chairwoman raised numerous concerns about the legislation. One criticism took issue with the proposed removal of the requirement to provide medical records. The letter disputes the merits of “extending the ability to change legal sex from a defined group with a recognised medical condition, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group,” questioning the choice to transition without medical evidence. Jack offered a similar opinion, stating that “these amendments remove any requirement for third party verification or evidence from the process.”
Reem Alsalem, the UN Special Rapporteur on violence against women and girls, argued in a November 2022 letter opposing the legislation that “such proposals would potentially open the door for violent males who identify as men to abuse the process of acquiring a gender certificate and the rights that are associated with it.” A poll of approximately a thousand Scots conducted by YouGov on a commission from The Times showed overall opposition to the reforms. 60 per cent of respondents opposed removal of the medical record requirement while 20 per cent were in support, with the remaining undecided. 59 per cent opposed the change in timeline from two years to six months, with 21 per cent in support. 66 per cent opposed the change in age requirement from 18 to 16, again with 21 per cent in support.