December saw the Scottish parliament passing a bill simplifying the process of people legally changing their gender, with a majority of 86 to 39. The bill reduced the age of being able to apply for a Gender Recognition Certificate from 18 to 16, removed the requirement for a diagnosis of gender dysphoria, and reduced the statutory waiting time from two years to three months.
The move was seen as highly controversial, with critics fearing the risk to women posed by allowing any male to self-identify as female, and thus giving them access to women-only safe spaces including prisons and refuges. On the other side, supporters of the bill argue that opponents are relying on harmful stereotypes. Mark Drakeford, Welsh first minister, wishes for the enactment of a similar self-identification system as in Scotland.
While gender recognition is a matter devolved to Holyrood, legislation governing equality remains under Westminster’s jurisdiction. Based on this, the government considered a section 35 order under the 1998 Scotland Act, which allows the government to block legislation if it has ‘reasonable grounds‘ to believe it would impact legislation enacted by the UK government.
Despite the repeated contentions of ministers that the legal effects of the bill would be minimal, the Gender Recognition Certificate that will become significantly easier to obtain under the new legislation would change the ‘sex’ of the person in question. The effect of this is that, for example, an individual that was biologically male with a Scottish Gender Recognition Certificate would be legally female, regardless of where they are in the United Kingdom, and benefit from protections conferred on females under the Equality Act 2010.
No British prime minister to date has ever used the powers conferred on them by the Scotland Act to block a law passed by the devolved administration until Rishi Sunak’s, government did on Monday, invoking the ‘nuclear option.’ The Scottish Secretary, Alister Jack, announced he would use section 35 following a review by UK government lawyers. Immediately following the announcement, Nicola Sturgeon tweeted:
Nancy Kelley, chief executive of Stonewall also commented on the move, opining that, ‘it is a matter of grave and profound regret that the prime minister has allowed trans people’s lives to be used as a political football. This is not governing with compassion.’