This week the UK government has made an order under section 35 of the Scotland Act to veto the gender recognition reforms passed by the Scottish parliament. Tuesday’s announcement by the Scottish secretary, Alister Jack, is harmful to trans people, who have waited long enough for improvements to the gender recognition process as – contrary to some claims being made – this legislation has been long proposed, consulted on and debated.
Indeed, it has been a manifesto commitment in the past two Holyrood elections, and has been overwhelmingly endorsed by the electorate on both those occasions. Being forced to consider the prospect of legal action before those changes can be enacted raises further uncertainty.
At every stage of the bill’s progress and development, the Scottish government kept the UK government informed through normal routes of engagement. At no point did Westminster ask to amend the provisions in the bill – neither during the extensive periods of public consultation nor during the drafting and parliamentary stages. The Scottish parliamentequally did not hear from the UK government during the passage of the bill.
Put bluntly, this was a one-way conversation up until the final moments when the bill should have gone for royal assent and become law. So for the Scottish secretary to announce that he was unilaterally vetoing the bill is fundamentally disrespectful to Scotland’s parliament and the MSPs who have been part of its scrutiny, consideration and passing.
Jack says he wants to find a constructive way forward. If he really wants to work together in a partnership of equals, then he should acknowledge that his announcement is completely incompatible with such a partnership – and he should immediately revoke the section 35 order. That would show the UK government is serious about improving the lives of trans people and respecting Scottish democracy.
The UK government’s approach should worry anyone who supports Scotland’s right to make decisions on devolved matters, regardless of their opinions about these reforms. This veto, with its flimsy reasoning, puts us on a slippery slope. Devolution was secured nearly a quarter of a century ago with the overwhelming support of the people of Scotland. It made the Scottish parliament, elected by and responsible to the people of Scotland, responsible for making laws on a range of matters.
The devolution arrangements put in place to protect reserved matters were not intended to enable the UK government to intervene at will in devolved matters, overturning the Scottish parliament’s decisions. But that is what is happening here and, as the first minister of Wales, Mark Drakeford, has said, it sets a very dangerous precedent.
The sad thing is that in many ways, the gender recognition reform bill saw the Scottish parliament at its best – MSPs extensively scrutinising a sensitive and important issue, listening carefully to and interrogating a wide variety of views, and working across party lines to amend and improve the bill. Contrast this to the Commons this week, where the Scottish secretary delivered a statement several hours before anyone else had the opportunity to view the underlying statement of reasons, and was unable to answer basic questions about his reasons or about gender recognition certificates themselves.
The bill was passed by a significant majority of the Scottish parliament. I’m confident that MSPs across parties will work together to stand up to the threat of unnecessary Westminster intervention. We’ve heard from trans people from across the UK who are incredibly upset by this decision – and worried about the threat to rights in other areas of life.
The bill passed by the Scottish parliament improves and simplifies the process of applying for a gender recognition certificate (GRC) for trans people. It doesn’t change the effect of having a certificate. GRCs matter to trans people because they allow them to change their birth certificate and be properly recognised in their gender if they get married and when they die. They are helpful but not necessary when applying for a driving licence or passport. That’s what a GRC is for, and nothing in our legislation changes the Equality Act or the rules on access to single-sex spaces and services.
This legislation is designed to make trans people’s lives better by removing an administrative burden. Instead, trans people have been dragged into an attack on devolution that puts them in the middle of a continuing culture war. The UK government must rethink this damaging course of action, revoke its section 35 order and give the Scottish parliament its right and proper place.
Shona Robison is the SNP MSP for Dundee City East and cabinet secretary for social justice, housing and local government
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