Let us take a moment to go through what has just happened.
Back in December, and after six years of deliberation—making it one of the lengthiest legislative discussions in the chamber’s history—the Scottish parliament passed the Gender Recognition Reform Bill by 86 votes to 39. Among those in favour were the overwhelming majority of SNP and Labour members, all Greens and Lib Dems, and even some Scottish Conservatives like Jackson Carlaw, the party’s erstwhile (albeit briefly) leader. The intention of the bill was to allow transgender people to self-identify without the need for a medical diagnosis of gender dysphoria, and to lower the age limit for self-ID to 16. Similar legislation already exists in countries as diverse as Portugal, Ireland, Denmark, Brazil, Canada and Mexico.
Yesterday, after weeks of disquiet, the secretary of state for Scotland Alister Jack announced the British government’s intention to block the bill from receiving royal assent by issuing an order under section 35 of the Scotland Act, which permits any Scottish bill to be blocked if “the Secretary of State has reasonable grounds to believe [it] would have an adverse effect on the operation of the law as it applies to reserved matters”—those areas still controlled by Westminster. In a statement that carefully mirrored the wording of section 35 1(b), Jack said he was “concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation”. Equalities law, as it is contained in the Equality Act 2010, is a reserved matter. (We should take note, however, of Jack’s reference to “Great Britain”; the 2010 act does not cover Northern Ireland.)
This is the first time in the history of devolution that the UK government has issued a section 35 order. Nicola Sturgeon disagrees with the premise of the constitutional argument being put forward, saying the Scottish parliament’s bill does not impinge on the Equality Act.
Some have argued that the real point of the order is to open up dialogue between Westminster and Holyrood on the self-ID issue; in his statement, Jack himself said he hoped both governments can find “a constructive way forward” on the bill. But “Westminster says no” seems rather a blunt way to restart a discussion that began six years ago already; the neglect and then elimination of more constructive channels of communication, like the Joint Ministerial Committee (JMC) for UK ministers and their devolved counterparts, would also suggest that dialogue was never really the government’s aim. It will now be—as Sturgeon has already indicated today—for the courts to decide whether the concerns of the UK government are valid.
At this point in time, it is not for any commentator to say why the UK government believes the Gender Recognition Reform Bill would have an “adverse effect” on equalities law, because it hasn’t explained its reasoning in detail. Jack’s reservations about the bill are wide in scope, suggesting disagreement that is not only fundamental but absolute. Combined with the presence of culture warriors across the UK government, such as the equalities minister Kemi Badenoch in cabinet and adviser Dougie Smith in Number 10, it would be fair to say that no version of the Gender Recognition Reform Bill, however well crafted, was ever likely to gain approval down south.
Whatever the discussion around transgender rights, you could say the Scottish parliament should not be legislating on reserved matters, and it’s as simple as that. And some critics of the Scottish government have taken this approach. But if that’s the problem then, rather than issuing a section 35 order, Jack should have instead issued a section 33 order, which allows the UK government to refer Scottish legislation which falls outside devolved competence to the courts. And yet he didn’t, perhaps because—as legal commentator Joshua Rozenberg argued in a blog last December—“the UK government would find it difficult to deny that the Scottish parliament has the competence to pass the gender recognition bill.”
But there’s the rub: the current controversy is not about whether the Scottish parliament was working outwith its devolved competence—a question that went to the Supreme Court only recently, with regards to draft legislation for a second independence referendum. This is not really a row about section 35 or 33. Rather, we are talking about a matter of ideological difference which, tragically, involves a minority group that is heavily stigmatised, marginalised and discriminated against. It seems obvious to me that what the UK government really wants here is to score a culture war victory on a constitutional technicality.
For my own part, I do not think the Gender Recognition Reform Bill impacts the Equality Act. And even if it does, then it is the current law around self-ID that is the problem, and not the Scottish parliament’s attempts to change it. There are now enough countries with self-identification legislation to provide enough examples of its merits—including how it might work in practice within federal countries where the issue is decided on a state-by-state basis, like in Canada and Mexico. Even within the UK we could, if we wanted, have separate equality acts treating each of the four nations individually—as already happens for Northern Ireland.
As we wait for the court proceedings, we should view the section 35 order within the context of increasingly aggressive action by the UK government towards the devolution settlement: the breakdown of the JMC, the contempt for Scotland as a partner during Brexit negotiations, the creation of the Shared Prosperity Fund which allows UK government grants to be awarded over the heads of Scottish ministers. And regardless of whether the courts agree with the UK government or not, it’s the same old problem that’s liable to crop up time and again in any heavily centralised state like our own. What we’re seeing amounts to the denial of difference.
Update: Since this article was published, the UK government has published an in-depth list of its reasons for issuing a section 35 order.
