UK Veto of Trans Rights Law Intensifies Fight With Scotland

Siraj Datoo and Kitty Donaldson
·6 min read
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(Bloomberg) -- A new battlefront has opened up in the standoff between pro-independence forces in Scotland and the British government after Prime Minister Rishi Sunak vetoed a contentious new law on gender recognition.

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The UK will block legislation passed by the Scottish Parliament last month that would make it simpler for people in Scotland to legally change their gender. The historic move marks an escalation in tension over the future of the union with England and Wales, coming as the administration in Edinburgh pushes for a referendum on full autonomy that London is refusing to permit.

Alister Jack, who is responsible for Scotland in Sunak’s Conservative government, said on Monday that stopping the legislation was necessary because it would have a “significant impact” on equality issues elsewhere in the UK. Shona Robison, Scotland’s social justice secretary, called it “a dark day for trans rights and a dark day for democracy in the UK.”

Relations between the two sides have been deteriorating for years as the UK withdrew from the European Union, which Scotland opposed, and the Scottish National Party-run government north of the border vowed to hold another vote on independence. The UK’s decision to intervene in the gender legislation comes less than two months after the Supreme Court thwarted Scottish First Minister Nicola Sturgeon’s plan to stage a referendum later this year.

The Scottish bill, passed in the Edinburgh parliament on Dec. 22 after a rebellion among some SNP lawmakers, aims to make it easier for transgender people to legally apply for a gender recognition certificate by allowing a process known as self-declaration, removing the need for medical checks.

It also dramatically speeds up the process to receive an amended birth certificate. Under Scotland’s effort, a transgender individual needs to have lived for three months in their acquired gender, down from two years under existing law.

Opponents, who prominently include Harry Potter author JK Rowling, argue the changes fail to protect women’s rights and single-sex spaces. Other critics say it is not appropriate to allow 16-year-olds — who under Scottish law can marry without parental consent and vote in local elections — to decide on such a profound change in their lives and the decision should be reserved for adults.

The wrangling over gender recognition is now firmly political and deepens the rift within the UK. It’s the first time a veto has been used to halt any law passed by the Scottish Parliament since it was re-established in 1999.

“This is the nuclear option,” LGBTQ rights charity Stonewall said in a statement, calling it “an unprecedented move which significantly undermines the devolution settlement and will unlock constitutional and diplomatic strife.”

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UK Scottish Secretary Jack will take the legal steps to confirm the veto this week before it goes for royal assent. Sturgeon said the UK had mounted a “full-frontal attack on our democratically elected Scottish Parliament.” She is likely to challenge the decision in the courts.

Win or lose, the issue is likely to fan nationalist sentiment in Scotland at a critical time. Polls show support for independence has risen since the UK’s top court quashed Scotland’s plan for a referendum.

Sturgeon had pledged to make the next UK election, expected by the end of next year, a de-facto vote on independence. Her SNP will be asked in March at a special conference to decide whether to press ahead with that or instead fight the 2026 Scottish Parliamentary election on the single issue.

Whether the battle over the gender recognition bill will win more people over to the independence campaign remains to be seen, though. One of the more controversial elements is the decision to allow 16 year-olds to apply to change their gender, although due to amendments they can only file an application after living in their acquired gender for half a year.

The Conservatives and opposition Labour Party leader Keir Starmer publicly opposed that part of the bill, saying the age should be 18. Meanwhile, the tension around the debate in Scotland revolved around so-called self-declaration, whereby individuals no longer need a medical diagnosis of gender dysphoria, which the National Health Service describes as a “mismatch” between a person’s gender identity and the one assigned at birth.

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Sturgeon, who faced a torrent of criticism from Rowling over the bill, told the BBC in an October interview that she wanted to make it “less degrading, intrusive and traumatic” for someone to change their gender.

Countries around the world, such as New Zealand, Canada and Australia, have moved in recent years to modernize their equality laws and simplify the process for trans people to change their legal gender, relying on self-identification rather than any medical procedures.

The bill put forward in Scotland isn’t wildly different from recommendations proposed in 2021 by the UK Parliament’s Women and Equalities Select Committee. The group of parliamentarians, led by Caroline Nokes of the Conservatives, suggested transgender people over 18 should be able to self-declare to change their gender without any medical involvement but with legal protections in place, with a focus on protecting women in same-sex spaces.

The UK government has so far resisted efforts to apply the recommendations. Just last week, it introduced a new policy that could end the reciprocal recognition of gender recognition certificates in other countries.

Some 60% of British people believe that transgender individuals should have a doctor’s approval before they can change their legal gender, according to a poll in May by YouGov. The same survey showed that there has been an erosion of progressive attitudes towards transgender rights since they first asked in December 2018.

Sunak is navigating a tense political battle between a younger generation of lawmakers who are more open to modernizing rights around gender identity with older Conservative voters. The prime minister is offering to introduce a ban on so-called conversion therapy.

He’d also sought to strike a more cordial note with Scotland compared with his predecessors. Boris Johnson’s relationship with Sturgeon was strained over Brexit and the handling of the coronavirus pandemic while Liz Truss called the Scottish leader an “attention seeker” who should be ignored.

But Sunak has now put himself in direct conflict with Scotland with the constitutional future of the UK still a simmering issue, and just days after a cheery photo op with Sturgeon at their meeting in the Scottish city of Inverness.

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