The UK government struck down a bill from Scottish parliament that would have made is easier for transgender Scots to legally change their gender. Backlash to the decision potentially has far larger implications for the relationship between Scotland and the UK.
The Gender Recognition Reform Bill sought to amend several key aspects of the British Gender Recognition Act of 2004, particularly the language about gender transition. Under the bill, applicants for a Gender Recognition Certificate in Scotland would no longer have to be professionally diagnosed with gender dysphoria, and could apply as early as age 16 instead of 18. While the draft of the Reform Bill had been started in 2021, it was first introduced in early 2022. A full parliamentary vote was held on December 22, 2022, resulting in the bill passing 86-39. However, in an unprecedented action, the British government invoked section 35 of the Scotland Act on January 17th. This blocked the legislation from receiving royal approval and becoming law. A section 35 order stops a bill from ascending if there is reason to suggest the legislation could conflict with laws in the UK. It has never previously been invoked. In this case, the main point of contention was the move towards self-identification in the Reform Bill conflicting with the current Gender Equality Act passed by the British parliament in 2010.
Although this has no effect on the current crisis of years-long waiting lists for gender-affirming care from the National Health Service in the UK, many supporters of reform have suggested that self-identification is the most effective way to aid transgender people in their social transition. Detractors have argued that self-identification puts women and children in danger of potential predators. In particular, during the vote for the bill, radical feminist and comedian Elaine Miller (she/her) exposed herself in the audience in protest, claiming that the bill enabled indecency.
The invoking of section 35 on this issue has some speculating that it could embolden and reignite a movement for Scottish independence. Scotland held a failed independence referendum in 2014. However, the independence movement would likely be a last-ditch effort, as there are additional steps Scotland can take to fight for the bill. Scottish Minister Nicola Sturgeon (she/her) stated that the bill will “inevitably end up in court.” Should Scotland issue a legal challenge, judicial review will determine whether the blocking was legal.
The UK Supreme Court ruled last November that, without approval from Westminster, Scotland could not hold a second independence referendum. Given that Sturgeon has, in the past, been very vocal in support of Scottish independence from the United Kingdom, a legal challenge to the UK parliament could be a key step in garnering support for revitalizing the independence movement.