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National
Michelle Rimmer in Edinburgh, Scotland

UK's intervention in Scottish gender laws could become 'powder keg' in nation's push for full independence

Protesters took part in demonstration for trans rights last week in response to the UK's intervention. (AP: Jane Barlow)

The United Kingdom is in uncharted territory, with the Scottish and British parliaments tangled in a constitutional battle that could end up in the High Court.

At the heart of the dispute is legislation that streamlines the process for Scottish people to change the gender on their birth certificates.

The gender recognition reform bill, which was subject to contentious political and public debate in Scotland over a six-year period, was blocked by the British parliament last week on the grounds it would impact other UK-wide legislation.

The decision was a blow to Jasper Veart, who came out as a transgender man three years ago.

The 21-year-old said he had hoped to change his legal gender as soon as the law came into effect so that the way he self-identified was represented on his marriage and death records in the future.

Jasper says without legally changing his gender, he would be incorrectly recorded in marriage and death. (ABC News: Adrian Wilson)

"I've got a family who don't agree with my identity, who don't respect my identity, so I myself am personally worried if anything were to happen, if I were to die, that I wouldn't be respected in death as I was in life," Mr Veart told the ABC.

"And if I did ever have plans to get married, I wouldn't have to be misgendered at my own wedding, in my own vows."

Mr Veart lives in Edinburgh and has found the current process to change gender in Scotland to be protracted, complicated and intrusive.

The new bill was designed to make it easier for more people to apply to change the gender recorded on their birth certificate by lowering the age limit from 18 to 16 years of age and removing the need for a medical diagnosis of gender dysphoria.

It would also shorten the length of time a person needed to have lived openly in the acquired gender from two years to three months.

But the bill is now trapped in constitutional limbo due to the UK's intervention, a move which has been condemned by transgender rights groups and politicians but welcomed by the bill's opponents.

The bill that put two countries at odds

The gender recognition reform bill was approved by Scottish politicians in December with an 86-39 majority.

It would have brought Scotland's laws in line with current legislation in Tasmania, but it goes further than any other Australian state.

However, last week Westminster used its powers under Section 35 to veto a Scottish law, its first intervention since the Scottish parliament was established 25 years ago.

Susan Smith, the director of activist group For Women Scotland, campaigned against the legislation and said she was relieved Westminster stepped in.

"When the original bill was drafted, it was meant to affect a very tight, very small group of people who have gender dysphoria, who had undergone quite substantial changes," Ms Smith told the ABC.

"By opening it up to essentially the entire population over 16, you're substantially changing that group.

"We have to be really careful about making such a radical change in people's status under law."

Nicola Sturgeon has criticised the UK's decision to intervene in the Scottish bill. (Reuters: Russell Cheyne)

British Prime Minister Rishi Sunak said the decision to intervene was regrettable but necessary because the law "would have a significant adverse effect on UK-wide equalities matters".

But Scotland's First Minister Nicola Sturgeon called the intervention a "full-frontal attack on the Scottish parliament".

A 'powder keg' for Scottish independence

The decision came amid escalating tensions between the Scottish and UK parliaments over the bill.

The Sunak government's Scottish secretary has argued it comes into conflict with an existing equality protection law, which applies across the UK.

The UK government has argued that changing the criteria for a person to change their legally recognised gender in Scotland would endanger same-sex spaces in other parts of the UK.

Conservative MP Jamie Greene broke ranks with his party to vote in favour of the legislation. (ABC News: Adrian Wilson)

Conservative Scottish MP Jamie Greene, who broke from his party to support the bill in a conscience vote, said while it was entirely within the UK government's prerogative to put the legislation to the test through the courts, it was "unfortunate" it happened to be on this issue.

He fears the UK's intervention may be used as ammunition in Scotland's push for independence.

"What this has done is, I think, set off a bit of a powder keg between the Scottish government and the UK government," Mr Greene told the ABC.

"This has to be resolved sensibly, hopefully more amicably and constructively.

"I think that requires both governments to sit around the table and discuss their differences about the content of the bill, the policy of the bill, and try and resolve any legal problems that exist in the legislation."

Mr Green said it had been "a tough slog" to get the bill approved by Scotland's parliament, with publicity around the issue sparking some "toxic" debates.

"It's been difficult, and I think for those people out there who are really looking forward to this legislation passing, they'll be hugely disappointed and they'll be hurt and they're angry …" he said.

"It's such a sensitive issue and there are so many parallel debates going around in the public sphere around it, some of them quite toxic."

'Scare stories' moving to the mainstream

Debate surrounding the gender recognition reform bill has stoked public division in Scotland for the better part of the past decade.

Those in favour of the legislation dread a renewed "toxic" debate in the pubic sphere.

"There's been a rise in … hatred where these people don't seem to want you to exist and they think that attacking this law is going to solve that," Mr Veart said.

British author JK Rowling has been a high-profile critic of the bill and last year funded a women-only rape crisis centre in Edinburgh because of concerns over "trans-inclusive" policies at other support centres in the city.

Rowling also campaigned strongly against Scotland's independence from English rule in the 2014 referendum.

Gina Gwenffrewi, a trans woman and lecturer in transgender studies at the University of Edinburgh, said anti-trans views such as those expressed by Rowling became increasingly more visible in Scotland as discussions around the bill progressed.

"What was previously on the margins of the internet — scare stories and fearmongering about trans people — it sort of migrated into the mainstream media," she said.

The UK's decision to block the legislation from passing had also reignited the divisive debate about transgender rights, she added.

"I think people were feeling relief," she said

"… Now we're going to get a new cycle and that's really frustrating."

Mr Veart fears what a renewed public debate will mean for the transgender community.

"I'm just really disappointed and worried about the future," Mr Veart said.

"And, kind of like, how polarised the issue is already and how it's going to get in the future for people like me."

'We can move forward on this issue'

Ms Smith hopes the UK's veto will broaden discussions around the impact of the bill on existing gender-based rights and provide the clarity needed to move forward.

"Essentially there's a tangle that currently exists between two pieces of legislation, the Gender Recognition Act and the Equality Act, and that all needs to be straightened out," Ms Smith said.

"If that is an outcome of this, that will be a good thing because clarity would be useful for everybody."

Scotland has vowed to fight the veto, fearing Westminster may become emboldened to intervene in other Scottish legislation.

Mr Greene is optimistic progress can be made on gender recognition in Scotland.

"I think we can move forward on this issue, but it will only be possible if we treat each other with a little bit more compassion and respect — and that, sadly, has been very missing from the debate so far," he said.

People in support of the legislation gathered outside the Scottish parliament to protest against the UK government's intervention. (ABC News: Adrian Wilson)
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