Clash looms on Scottish gender bill as UK government considers vetoon January 14, 2023 at 6:51 pm

A clash between the UK and Scottish governments could be coming next week.

The cause? The two governments are going in different directions on the process for allowing someone to change legal gender.

But look a bit deeper, and it’s fast becoming a constitutional quarrel.

When Holyrood passed legislation to enable Scots to change their gender more easily, many campaigners hoped it would draw a line under a debate that’s simmered away in Scottish politics for years.

Currently, someone looking to change their legal gender in the UK must live in their acquired gender for two years and get a diagnosis of gender dysphoria.

MSPs backed a move towards a self-identification system last month, meaning that Scots will no longer require a medical diagnosis to change gender, and the timescale will also be cut to a matter of months.

But, as it turned out, that vote in Edinburgh was not the end of the issue.

The UK government is considering using its own powers to block the Scottish legislation, and ministers are uneasy about the new system that could soon operate in Scotland.

So what’s their justification for potentially challenging laws coming from Holyrood?

They have concerns that a simplified Scottish system for changing gender could come into conflict with UK-wide equalities law (something Holyrood is not responsible for).

And this is prompting a number of Conservative MPs to ask questions about what the implications could be for the rights these people would have in any other part of the UK.

What does it mean for accessing certain spaces reserved for just one sex, such as women’s shelters or prisons? What’s the impact on collecting and reporting data on the gender pay gap?

The Scottish government insists that the bill does not undermine any aspect of the UK-wide Equality Act, saying that the new system doesn’t give any additional rights to anyone who gets a gender recognition certificate that they can’t already enjoy today.

Rishi Sunak told BBC Scotland on Friday that his main concern was the bill’s impact across the UK, saying it was “completely standard practice” to look at the effect legislation passed at Holyrood could have.

Downing Street said no final decision had been taken on whether or not to block the legislation.

And the PM’s spokesman said they believed the UK’s 2004 Recognition Act struck “the correct balance” and allowed for “proper checks”.

Conservative MP Rachel Maclean is a vice-chair of the party, and while she may represent a seat in England, she’s taken an interest in this Scottish legislation, arguing it could have enormous impacts on other parts of the UK.

She told the BBC: “We want to be compassionate to people who feel that they want to change their sex and their legal gender, but at the same time we have to make sure that we protect particularly single-sex spaces for women.

“They are there for a reason – to protect those vulnerable women and girls.”

She’s sceptical about the streamlining of the process in Scotland, saying it is effectively allowing self-identification – which creates “a huge number of consequences”.

She says she worries about knock-on effects when it comes to participation in sport, the arts, and business.

She adds: “That’s before we really start talking about where we have vulnerabilities at play, such as in prisons or in rape and domestic abuse shelters.”

She argues it has “enormous impacts across the whole of our protection framework and our understanding of what does it mean to be a man or a woman”.

This is an issue that divides a number of parties. Even within the SNP, the Scottish legislation has its critics.

Though the SNP-led government in Scotland spearheaded the bill, it sparked the biggest rebellion the party had ever seen at Holyrood.

Ash Regan resigned as a Scottish government minister in order to oppose the legislation, and said the bill “sent a message to the women and girls of Scotland that your rights to privacy, dignity and safety don’t matter.”

But supporters of the bill see it differently. Campaigner Ellie Gomersall, who is president of the National Union of Students in Scotland, and a Scottish Green Party activist, has been a vocal advocate for a change to gender laws in Scotland.

She came out as trans when she was 18, and is hoping to legally change her gender and obtain a Gender Recognition Certificate (a GRC).

Ellie says it was “such a relief” when the bill was passed in Scotland.

“One of the hardest parts about being trans is the admin,” she explains, saying that she’s faced a five-year wait to access an NHS gender identity clinic.

She says the trans community will fight any UK government attempts to obstruct the new Scottish system.

She sees their response as “an attack ultimately on devolution, on trans people, and on Scotland’s right to make our country fairer and more equal”.

Kade lives in England and, as a transgender man, believes UK government policies contribute to a difficult atmosphere for trans people.

“Nobody is going to be transgender for fun,” he says, adding that he was hospitalised after a transphobic attack two years ago.

“We don’t feel safe, we don’t feel valid, and we’re afraid I think. Although we try not to let this fear impact us on a daily basis, there is that underlying fear for both our mental wellbeing and our physical wellbeing.”

Rather than block the Scottish legislation, he wishes the UK government would emulate it.

If the UK government does want to act, it doesn’t have a lot of time. The Scotland Act stipulates a four-week time limit to intervene after MSPs pass a bill. That gives them until the middle of next week.

So what are the UK government’s options?

Under Section 35 of the Scotland Act, UK ministers can stop a bill getting royal assent.

The secretary of state for Scotland can do so if they think a Holyrood bill would modify laws reserved to Westminster and have an “adverse effect” on how those laws apply.

This would be the nuclear option – a section 35 order has never been used. And it’s entirely possible there could be a legal challenge in response from the Scottish government.

One Scottish government source said using a Section 35 Order would be “chilling”. Scottish ministers would see this as the UK government muscling in on a devolved area.

The UK government has also not ruled out the possibility of referring the Scottish bill to the Supreme Court, who could decide if Holyrood legislated beyond its powers in passing this act.

This whole debate is – on the surface – about gender issues.

But like so many disagreements between governments in London and Edinburgh it has the constitution at its heart.