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25 Jan 2023

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Philip Rycroft analyses the dispute between the UK and Scottish governments over the Gender Recognition Reform Bill and the UK government’s decision to veto the legislation.

Scotland’s two governments collided this month over the fraught issue of trans rights. The UK government wielded a never-before-used provision of the devolution settlement to veto a bill passed by the Scottish parliament which sought to reduce the hurdles for individuals wishing to formally change their gender. Gender politics is now entangled in a bitter constitutional row which looks simply intractable.

The basic facts of the case are relatively straightforward. The Gender Recognition Reform Bill, passed by the Scottish Parliament by 86 votes to 39, would have allowed people to effectively self-identify for their gender, removing the need for medical verification and reducing the waiting time. This new right would have been extended to 16- to 18-year-olds.

While recognising that the Scottish Parliament has the power to legislate on gender issues, the UK government claims that the enactment of the Bill would create different gender recognition policies north and south of the border and would have an adverse impact on the operation of the Equality Act 2010, a piece of legislation that is reserved to the UK parliament. This provided the legal justification for wielding section 35 of the Scotland Act to veto the Bill which will not now become law.

If only it were that simple. Behind these bare facts of the dispute is a tangled web of bewildering complexity. This is deeply contested territory in which the main protagonists are noisily proclaiming that they have right on their side.

The Scottish government is insistent that it is the right time to address the rights of the trans community. The UK government and the many critics of the Bill are equally adamant that they are right to worry that the Bill upsets the balance between those rights and the rights of others, notably women, and its provisions are too open to abuse by malign individuals who might threaten the safety of women.

Supporters of the Bill are right to point to a clear majority in the Scottish Parliament in support of the Bill; it has gone through a proper democratic process. Opponents of the Bill are right that the passage of the Bill caused deep disquiet among MSPs from all political parties and is hardly a top priority or particularly popular with the public.

The UK government is right that the Bill will create cross-border complexity since the gender of some individuals will be legally different in Scotland and England. Those worried about the drifting apart of Scotland and the rest of the UK are right that the UK government has a legal power and responsibility to intervene if an act of the Scottish Parliament would impact on the operation of reserved policy; this was baked into the devolution settlement.

The Scottish government is right that the wielding of section 35 is unprecedented and will cut across the express will of the Scottish Parliament.

All those people being loudly right can’t fit into the same room.

It has been the action by the UK government to trigger section 35 that has crystallised a formal dispute between the two governments. The UK government had three choices. It could have agreed that what the Scottish parliament was aiming to do in terms of trans rights was the proper and progressive thing to do and to have committed to legislate on similar lines for England to remove the potential for cross-border disparity. That was about as likely from this government as a confession that Brexit might after all have been a wrong turning for the country.

The UK government had an option to do nothing. It could have argued that triggering a constitutional override was disproportionate to the likely adverse impacts of the Bill. The Scottish Bill would have become law and experience would have tested the claims of both its proponents and its detractors.

The UK government chose instead to wield its third option: to veto the Bill. This will now be challenged in the courts by the Scottish government. So the sorry saga enters another phase, further souring relations between the two governments. The dispute will grind away for months to come.

The incurably optimistic might cling to the hope that sensible politicians of all stripes could work in good faith to find a solution that would deliver benefits to the trans community while providing reassurance to those who fear that some would abuse those rights to the detriment of the safety of women. But the sad truth is that behind all the public piety, a noisy public stand-off on this most sensitive of issues rather suits the political interests of the main protagonists.

For the SNP, the UK government veto is more grist to the grievance mill; the wicked Tories have launched a malign assault on the devolution settlement and the improvement in the rights of a vulnerable community.

For the UK government, this is a chance to proclaim to their base a robust rejection of unconscionably woke virtue signalling and to stick it to the insufferably holier-than-thou SNP. Both SNP and Tories can enjoy the spectacle of the Labour party floundering in its own uncertain anxieties about the Bill.

So more fuel is poured on the fire of inter-governmental conflict. A bemused public will look on, wondering just who will benefit from these political pyrotechnics.

By Philip Rycroft, Distinguished Honorary Researcher at the Bennett Institute for Public Policy, and former Permanent Secretary at the Department for Exiting the EU.  

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