“I honestly can’t tell if I’m angry or exhausted, probably a mix,” said Arabel, one of a group of young trans Scots who shared their experiences with MSPs last year as the Holyrood parliament considered the gender recognition reform bill.
The group’s frustration and weariness was palpable on Wednesday morning, following the announcement from Scottish secretary, Alister Jack, that he will block the bill – which simplifies the system by which transgender individuals change their gender and lowers the age of application to 16.
“I can’t even be angry, it’s just stupid, said 18-year-old Sid. “The UK government are making a great case for independence: they’re showing a complete lack of respect towards both trans people and Scotland.”
MSPs who sat through days of fraught and often emotional debate in the Scottish parliament at the end of last year, including unprecedented early hours sittings and protests inside the chamber, were watching events unfold in Westminster on Wednesday afternoon. Jack formally blocked the law that would have made Scotland the first part of the UK to introduce a system of self-identification for those wanting to change gender.
“It was like we were right back where we started,” said one MSP who was heavily involved in the nuanced and respectful cross-party brokering of amendments that characterised the final days of the bill, evidence of the steep learning curve Holyrood has been on over the past year.
The phrasing used on social media by SNP politicians following Jack’s announcement was telling: “Whatever you think about the bill itself, this is a denial of democracy” – a phrase first coined by Nicola Sturgeon after last October’s supreme court ruling that Holyrood could not legislate for a second independence referendum without Westminster approval.
Critics of the bill say that this is a legal, not a democratic issue, and that the UK government had no choice but to resort to section 35 of the Scotland Act after the Scottish government ignored prior interventions. Gender critical groups including For Women Scotland point out that concerns about the Equality Act were raised repeatedly, including by the UK equalities watchdog.
The use of a section 35 order has frequently been described as “the nuclear option”, although the architects of devolution were clear at the time of drafting the act that is was a necessary addition.
But as Kenneth Armstrong, professor of European law at the University of Cambridge, points out, previous UK government challenges to Holyrood – such as post-Brexit frameworks, incorporation of UN rights or the referendum – were all done through the courts, requiring days of hearings and evidence. “To have a minister of the crown block this bill feels very different, and pitches parliamentary decision-making versus the executive in a fairly dramatic way.”
Certainly Jack’s move is a useful distraction for the SNP leadership from the muddle around plans to run the next election as a de facto referendum – there was heavy criticism after a meeting of the party’s national executive committee last weekend appeared to roll back on the proposal.
When Sturgeon first proposed this reform in advance of the 2016 Holyrood election it was considered an incremental step along what she regarded as a progressive path of equalities law. She could not have anticipated the accelerating culture war that would distort and conflate matters down the line – a number of MSPs speak wistfully of the alternative history where the bill was passed soon after 2016 with minimal opposition or consequence.
Following the supreme court’s ruling in November that a referendum on Scottish independence cannot take place without Westminster agreement, polls indicated a boost in support for independence in Scotland. But polling expert Sir John Curtice refers to YouGov and Panelbase polls for the Times and Sunday Times in December as evidence that the Scottish government has failed to persuade the public on the detail of gender recognition reforms, and believes this is likely to cancel out any immediate bump in independence support.
Longer term there are concerns, even among Scottish Conservatives, about the UK government’s strategy. Jamie Greene, who broke ranks with his party to support the bill, wrote to the prime minister, Rishi Sunak, at the weekend warning him that blocking the bill would be “a gift to proponents of independence”.
Meanwhile, Scottish Labour finds itself in a familiar bind after UK leader Keir Starmer told reporters he believed that 16-year-olds weren’t old enough to decide to change gender, diverging from what the majority of Holyrood colleagues had voted for a few weeks prior.
In private, there are those in the SNP and Labour who still worry that the bill raises collateral issues, and that Holyrood still lacks a full understanding of its engagement with the Equality Act, though few agree that a section 35 order is the way to facilitate this, expressing disappointment that an opportunity for legal clarity will probably be drowned out by further political posturing.
