LONDON — Welcome to the latest Scottish independence battlefield: transgender rights. Scotland’s government wants to make it easier for people to legally change their gender. The Conservative administration in Westminster says it’s massively overstepping its powers. Now the two sides are thrashing it out in the courtroom, with a three-day hearing getting underway Tuesday morning.
It’s a row that unites two hot-button political issues: gender identity and Scotland’s right to pass its own laws. And the outcome could have major ramifications for the embattled Scottish National Party (SNP), which is reeling from a police probe into its finances. Here’s what you need to know.
When did this all begin?
It’s been a long road to the courtroom. At present, anyone in the U.K. over the age of 18 who wishes to legally change gender must apply to a gender recognition panel — a tribunal made up of legal or medical professionals — and present a difficult-to-obtain medical diagnosis of gender dysphoria.
Scotland’s SNP-led government, which has warned trans people are “among the most stigmatized in our society,” wants to apply a different system north of the border. It first consulted on reforming gender laws in 2017 and again in 2019. After the 2021 Scottish parliament election — which saw the SNP stay in government but reliant on the left-wing Scottish Greens — it doubled down, and last year introduced a Gender Recognition Reform bill.
Scotland’s proposed reforms would remove the need for a medical diagnosis of gender dysphoria. They would allow people to apply for a gender recognition certificate so long as they have been living as the gender they identify with for three months, rather than the current minimum of two years. Similar reforms have been introduced in 11 European countries. Under the plans, 16- and-17-year-olds would also be able to apply to legally change their gender, although after a longer period of at least six months living as the gender they identify with.
And when did the trouble start?
Once famed for its cast-iron internal discipline, splits in the SNP had begun to show by late last year. The party’s gender plan became a key issue for some of then-First Minister Nicola Sturgeon’s most strident critics. They either directly disagreed with the reforms, or argued that they were a distraction from the party’s ultimate aim of gaining independence for Scotland.
Campaigners — who have become increasingly organized in opposition to self-ID — are concerned the reforms will negatively impact the rights afforded to women in law, including access to female-only spaces and services. This position was summarized by the SNP MSP Ash Regan, who said the legislation “may have negative implications for the safety and dignity of women and girls” as it made its way through the Scottish parliament. She quit a ministerial post in Sturgeon’s government to vote against the bill.
For her part, Sturgeon argued that trans rights and women’s rights need not clash, while campaigners in favor of reform said the current process for obtaining a gender recognition certificate is dehumanizing and difficult. The vast majority of trans people in the U.K. live without legally changing their gender, and that can present difficulties in situations such as marriage, where a birth certificate is required.
It was in this changed context that the SNP suffered its largest backbench revolt in history when the bill was voted on for the first time last October. Seven of the party’s 64 MSPs voted against the Gender Recognition Reform bill, but it comfortably passed nevertheless. In a final vote in December, the bill passed easily again, despite a slightly larger SNP rebellion. Cross-party support from opposition Labour and Liberal Democrat MSPs — plus the Greens — ensured it was in little danger of failing. A number of amendments aimed at diluting some of its aims were not passed.
So what’s this got to do with the U.K. government in Westminster?
Plenty, it reckons. Over the years, Scotland’s devolved government has amassed the power to act in a vast range of areas. But there are many matters on which London still calls the shots, much to the annoyance of pro-independence campaigners. And on this one, the London government cries overreach.
Alister Jack, the U.K. government’s Scotland secretary, said after the bill was passed that Westminster would look at the “concerns that many people have” and ascertain whether the bill had “ramifications” for U.K.-wide law. Westminster would, Jack warned, block the act “if necessary.”
Suddenly, politics-watchers were forced to frantically Google Section 35 — a little-known part of the original settlement devolving power from Westminster to Scotland. This allows the U.K. government to veto devolved legislation that infringes on wider British law. Jack surprised few when, in January this year, he announced he had decided to block the act. But, as the first-ever use of a Section 35 veto, it still marked a significant moment in Scottish devolution’s 24-year history.
His arguments, set out in a 13-page document written by government lawyers, centered on potential issues arising from Scotland and the rest of the U.K. having different systems for gender recognition. The document also pointed to the removal of “important safeguards” in the process and the impact on the operation of single-sex spaces.
Jack said the U.K. government would be happy to consider an amended bill. But the SNP reacted furiously, and has argued the U.K. government is effectively trying to roll back on devolution. Before quitting as first minister, Sturgeon said she would challenge the block in the courts, and her successor Humza Yousaf is sticking to those guns. Gender reforms became a hot-button issue in the contest to replace Sturgeon, and it’s clear the SNP’s vast ranks of elected lawmakers are far from united on the fate of the bill.
How will the court battle play out?
The reforms are now in the hands of the Outer House of Edinburgh’s Court of Session and a single judge, Shona Haldane. Haldane will be tasked with ruling on the legality of Westminster’s block on the legislation, rather than the detail of the reforms themselves. In three days of proceedings starting Tuesday, the Scottish government will set out why it believes the U.K. government was wrong to intervene. The Scottish government’s chief law officer will argue both that its legislation would not impact wider U.K. law in an adverse way and that Westminster provided insufficient evidence to suggest this, and also that the Section 35 order was partially made for political rather than legal reasons.
The U.K. government will argue that they provided enough evidence and arguments when Jack made the order. They will argue Jack had reasonable grounds to believe Edinburgh’s legislation would have adverse effects on U.K. law. Haldane will likely take some weeks to deliberate over the decision once proceedings wrap up. Once she rules either way, that may not settle the issue. Either losing side could appeal to the U.K.’s Supreme Court — meaning Edinburgh and London might yet lock horns in the courtroom again.
Source: POLITICO
