The British government has blocked a Scottish bill intended to make it easier for individuals seeking to legally change their gender. It is the first time in UK history that Westminster has made such an intervention, which is prompting fears of a constitutional crisis.
In December, the Scottish legislature under First Minister Nicola Sturgeon’s socially progressive government passed the ‘Gender Recognition’ bill. This would allow those as young as 16 to change their gender without prior surgery or even a gender dysphoria diagnosis.
These gender reforms engendered—and still do—controversy in Scotland, where two recent polls indicate that the issue has greatly divided public opinion.
The British government has now invoked Section 35 to stop the bill. It is the first time a Scottish law has been blocked using a Section 35 order, an action that has always been viewed as somewhat of a nuclear option.
Section 35 of the 1998 Scotland Act states that Westminster can intervene if the secretary of state “has reasonable grounds to believe it would have an adverse effect on the operation of the law as it applies to reserved matters.” When triggered, Section 35 goes through the House of Commons.
In this context, the cited “adverse effect on the operation of the law” refers to the British Equality Act, which is UK-wide. Under the UK system of devolution, the central government allows some decisions to be made by local governments.
Scottish Prime Minister Nicola Sturgeon (Scottish National Party) however does not agree the bill falls under the competencies of the government in London and has called the move a “full-frontal attack” on [the sovereignty of] the Scottish Parliament.
The Scottish government, she said, would “defend the legislation and stand up for Scotland’s parliament.” The bill received the backing of all political parties at Holyrood except the Scottish Conservatives.
Any move to block the reforms would be using transgender individuals “as a political weapon,” according to her; the British government has called the accusation baseless.
Scottish Social Justice Minister Shona Robison called the decision from London “outrageous,” adding that it was “a dark day for trans rights and a dark day for democracy in the United Kingdom.”
The Scottish government, Sturgeon announced on Tuesday afternoon, will bring its grievances before the Court of Session in Edinburgh.
The UK government’s Scottish secretary, Alister Jack, who has the prerogative to block legislation passed by Holyrood if he believes it would have a detrimental impact on areas that are reserved for Westminster, sees matters differently.
Having vetoed the bill on Monday, January 16th, he said it was a decision that he had “not taken lightly.” Jack warned that the changes made through the legislation risked “creating significant complications from having two different gender recognition schemes in the UK,” including “allowing more fraudulent or bad faith applications.”
He defended his veto before the House of Commons on Tuesday by citing the bill’s impact on the protections contained within Britain’s Equality Act. He voiced concerns about how single-sex-exclusive clubs, associations, and schools would fare, with women’s shelters and locker rooms being particularly vulnerable. Other protections, such as equal pay, would also be threatened, he added.