Sunak Government Threatened to Halt Scottish Gender Law Recognition
A new law that would make Scotland the first region of the UK to implement a self-identification system for those who want to change gender is being threatened with obstruction by Rishi Sunak‘s administration.
Westminster made it plain it would contemplate a “nuclear option” of blocking the measure from receiving royal assent, angering proponents of the revisions and nationalists. This was a significant escalation that thrusts conflicts over transgender rights into the constitutional arena.
Any such involvement would be “vigorously contested,” according to the Scottish administration.
Sunak and his cabinet were referred to as “democracy deniers” by the first minister and SNP leader, Nicola Sturgeon, after the supreme court decided in October that Holyrood could not legitimately organize another independence referendum without Westminster’s consent. Over the past month, the decision has helped independence in the polls.
Following a vote on Thursday afternoon, in which MSPs overwhelmingly supported proposals to make it simpler and less invasive for people to legally change their gender, and to expand the streamlined process for obtaining a gender recognition certificate (GRC) to 16 and 17-year-olds, the Scottish government hailed the vote as “a historic day for equality.”
Alister Jack, the Scottish secretary, said the following right after the 86-39 vote, which came after three days of intense and occasionally emotional debate at Holyrood: “We share the concerns that many people have regarding certain aspects of this bill, and in particular the safety issues for women and children.
In the upcoming weeks, “We will carefully consider that, as well as the implications for the 2010 Equality Act and other UK-wide legislation — up to and including a section 35 order halting the bill from receiving royal assent, if necessary.”
The Scottish government “has not addressed the full effects of their law, notably on the lives of women and girls,” according to the women and equalities minister Kemi Badenoch, who met with Shona Robison on Monday to discuss the measure.
The UK government is currently considering provisions that could encourage reconsideration and enable MSPs to address these issues, she continued.
While equalities legislation—with which the new law would interact—is reserved to Westminster, gender recognition is a devolved affair.
Jack’s involvement comes after briefings from the UK government in the days before the vote, which claimed that the new rule would result in “legal mayhem” and “gender tourism” across the border into England.
The Scottish secretary may issue an order under Section 35 of the Scotland Act forbidding Holyrood’s presiding officer from presenting a bill for royal assent if they have good reason to believe it would negatively affect how the legislation operates where it pertains to reserved areas.
A move like that would almost certainly be opposed by the Scottish government, either through judicial review or a direct appeal to the supreme court, leading to the second court war in recent months between the two governments.
A spokesperson for the Scottish government stated: “The law as enacted is within legislative competence and was supported by an extremely large majority across all parties. The Scottish government will vehemently oppose any attempt by the UK government to undermine the democratic will of the Scottish parliament.
Before deciding on the next move, Westminster government law officers will further examine the consequences of the bill, with Jack’s threat to deny royal assent considered as not just feasible but quite likely.
That is, if you will, the nuclear option, according to a UK government source. The ideal situation, of course, is that we could alert the Scottish government to all the constitutional problems the law raises in its current form so that they could make necessary changes before it is completely implemented. However, we are actively considering all options.
A representative of the Equality and Human Rights Commission urged the UK government to be clear about whether Scottish GRCs will be recognized throughout the UK as soon as the referendum was completed.
The constitutional aspect of the measure, which sparked the largest backbench revolt in the SNP’s 15 years in power, will heighten tensions surrounding it. Minutes before the decision was made, demonstrators in the public gallery interrupted the argument as a sign of the underlying tensions.
The bill passed easily with backing from the Scottish Greens, Labour, and the Scottish Liberal Democrats despite the opposition of nine SNP MSPs, including Ash Regan, a former minister who resigned in protest at a previous vote. Three Conservatives who were given a free vote backed it, but two Labour members who were forced to vote in favor rebelled.
Six years after Sturgeon’s initial suggestion, during a specially prolonged session, the measure was passed. Sturgeon has been a steady and ardent proponent of the move. The Scottish parliament’s two largest public consultations in its history led to the passage of the bill.
When presenting the final version of the bill to parliament, Robison insisted that the application process for a GRC under the new system would remain “a substantial and significant legal process,” with protections being strengthened during the passage of the bill. She also asserted that the bill “doesn’t change public policy… around the provision of single-sex spaces and services.”
“Trans rights are not in conflict with women’s rights,” she told the MSPs, “and, as has been proven time and time again, we can all benefit when people who are discriminated against behave as allies rather than adversaries.”
Rachael Hamilton, the equalities spokesperson for the Scottish Conservatives, however, told Robison that her government had not brought the Scots with them and that “in the rush to make the process a little easier for trans people, the government is making it easier for criminal men to attack women.”
The gender recognition bill in Scotland served as a focal point for other problems.
Holyrood saw an unprecedented amount of cross-party cooperation during the third-stage amendment process, which extended to two marathon sessions concluding after midnight on Tuesday and Wednesday this week. Members worked to address concerns about abusive males abusing the new system.
The “simple but vital” improvements, according to Scottish Trans manager Vic Valentine, will enable trans people to live “with the dignity and recognition that everyone deserves.”
“Trans people throughout Scotland will be feeling delighted and relieved that this measure has passed today, following many years of challenging public debate that often felt like people were talking about us and not to us,” they continued.