A TORY think tank has set out a possible route for the UK Government to block Scotland’s gender reforms from being given Royal Assent - but will they actually go through with it?
When the Gender Recognition Reform (Scotland) Bill passed before Christmas, Scotland Secretary Alister Jack immediately said that the UK would “look closely” at the legislation and ministers were considering a Section 35 order.
With previous legislation the Government disagreed with, such as the inclusion of the UN Convention on the Rights of the Child (UNCRC) in Scots law, lawyers took the issue to the Supreme Court. The UNCRC Bill and the draft Referendum Bill were both found to be outwith legislative competence, with the latter being sent back to Holyrood for changes to be made.
But with the GRR the Lord Advocate has signed off on the competence of the Scottish Parliament, and this leaves the UK Government in a sticky position - are they willing to challenge this bill and risk setting a worrying precedent where Westminster can void any Holyrood legislation if it pleases?
The Policy Exchange think tank, previously described by the Telegraph as the “largest and most influential on the right”, produced a 50-plus page paper making the case for the UK Government to pursue a Section 35 order. Under the Scotland Act, the UK Government can use Section 35 order if a bill which is within the Scottish Parliament’s competence has an impact on how the law operates in the wider UK context.
While the Policy Exchange document argued that the GRR Bill has numerous implications for the UK-wide Equality Act and the impact on single-sex spaces, this has been roundly disputed by the Scottish Government, human rights experts and LGBT campaigners who support the bill. They point out that trans people have been accepted into single-sex spaces prior to the legislation being brought in.
The legislation itself even states that “nothing in this Act modifies the Equality Act 2010”.
However, the right-wing think tank argues that the UK Government can use a Section 35 order as the test will be the “legal effects” of the Scottish legislation.
“If the effect of the bill, having regard to all circumstances, is such that it will modify the law relating to equal opportunities, that is sufficient to make a s.35 order, even if the purpose of the bill does not relate to a reserved matter,” it reads.
However, the real crux of the issue here is the self-ID element of the reforms, which removes the requirement for a medical diagnosis of gender dysphoria.
The UK Tories are vehemently against it, and it became one of the main talking points during the Tory leadership debate in summer last year. Kemi Badenoch, now Women's and Equalities Minister, has consistently argued against it, and is now reportedly working with Jack to see how they can stop the legislation.
It is unlikely that a Section 35 order will be deployed, for numerous reasons. It would damage relations between the UK and Scottish governments, and the UK’s international standing, for one. There have been numerous warnings from international experts for the UK Government to stop using LGB and trans people’s lives as a “culture wars” issue, but whether or not that warning will be heeded remains to be seen.
What the UK Government is likely to do instead is remove Scotland from the list of countries where they deem the checks and balances required for a Gender Recognition Certificate (GRC) are of a sufficient standard. This was last updated in 2011, but Badenoch announced in the wake of the GRR passing that they intend to update it as soon as possible.
Those with GRCs not on the list of approved countries will have to apply for a UK certificate for it to be accepted south of the Border.
With just over a week for the UK to throw down the gauntlet, before the allocated time allowed for a challenge runs out, it’s understandable that trans Scots and activists who fought for the reforms will be worried about what comes next and if their hard work will be undone.
However, self-ID is in place in 18 other countries around the world. The UK is risking further isolating itself from the international community and giving yet another reason for progressive Scots to consider independence as the only option.
