Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Thursday, June 20, 2024 | Back issues
Courthouse News Service Courthouse News Service

Veto of Scottish transgender rights bill sparks constitutional crisis

The U.K. government drew ire in Edinburgh by vetoing Scottish legislation for the first time, preventing the nation from changing gender recognition rules.

(CN) — Britain is mired in yet another constitutional row this week after the United Kingdom government took the unprecedented step of vetoing Scottish legislation that sought to reform gender identity laws.

The Gender Recognition Reform Bill was passed by the semi-autonomous Scottish Parliament in December last year, and intended to make it easier for transgender people to legally change their gender identity. Under the devolution arrangement which grants Scotland some degree of political autonomy, gender recognition falls under the exclusive competence of the Scottish Parliament to legislate on.

The British government can technically choose to veto any Scottish legislation if it fails to comply with existing U.K.-wide laws, though this step has never been taken before. However, rumors that the government in London was set to block the reforms were confirmed by Prime Minister Rishi Sunak’s Scotland minister Alister Jack on Monday.

“After thorough and careful consideration of all the relevant advice and policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation," Jack said in a statement.

The decision sparked fury in Edinburgh, with Scotland’s First Minister Nicola Sturgeon labeling the move as “a full frontal attack on Scottish democracy” and accusing Jack of acting “like a governor general” – the title of British colonial administrators.

The British government claims the reform alters the 2010 Equalities Act, a U.K.-wide law over which Parliament has exclusive domain. The contention is that the new law creates an ambiguous dual system of gender recognition that undermines the effective functioning of laws which seek to prevent discrimination on the basis of sex.

However, Scottish legislators argue they addressed these concerns at length during the drafting of the reforms, sparking suspicions north of the border that Westminster was pursuing an entirely different agenda. In Parliament on Wednesday, the Scottish National Party’s Westminster Leader Stephen Flynn accused the government of trying to “stoke a culture war against some of the most marginalized people in society,” describing Scottish democracy as “collateral damage.”

Under current British gender recognition laws, transgender people must receive a diagnosis of gender dysphoria from a medical professional, and prove that they have lived in their new gender identity for at least two continuous years, before they can legally change their identity. Transgender groups have described the existing law as intrusive and degrading, arguing the process should not be medicalized. A 2020 report from the European Commission stated that the U.K. was lagging behind international human rights standards on the issue.

The Scottish reforms seek to remove the medical and evidential requirements, and lower the age at which a person can change their gender identity from 18 to 16.

Critics of the reform claim that making it easier for people to change their gender identity would enable anyone to enter women-only spaces, such as bathrooms, in bad faith. Sunak alluded to as much in Parliament when he claimed that his government’s veto sought to protect “the safety of women and children.”

But supporters of the reform say there is no reason why such behavior would be enabled, as the law is only an administrative alteration affecting the issuing of birth, marriage and death certificates.

The wrangle over the reforms has dragged on for years and provoked often heated debate. The initial proposal was a major factor in the eventual breakaway of the Alba Party from the Scottish Nationalists in 2021, and also the cause of the party’s largest ever rebellion in the Scottish Parliament last year.

The legislation was first introduced by the ruling SNP and their governing partners, the Scottish Green Party, but ultimately supported by representatives from all parliamentary parties in Scotland. The support of the Scottish Labour Party and some Scottish Conservatives is in stark contrast to the positions taken by Labour and the Conservatives south of the border, who have distanced themselves from the bill. The disunity echoes similar party political divisions that have arisen in previous years, which have served to make Scotland’s party system increasingly politically distinct from those in England and Wales.

In this light, the veto decision comes at a crucial moment for the Scottish independence movement, which had appeared to be losing momentum. A landmark U.K. Supreme Court decision last year prevented the Scottish government from organizing another independence referendum in the nation, and in doing so the court appeared to have closed down space in which SNP, who back independence, could maneuver.

But the independence movement’s most effective recruiting agent has long been the perception that Westminster has little regard for Scottish political institutions or democracy. Sunak’s veto of Scottish legislation is likely to inflame such sentiment and undermine his unionist cause. The latest poll suggests 52% of Scots back secession, with 44% opposed.

The Scottish government’s next move is back to the courts, and in all likelihood ultimately the U.K.’s Supreme Court, for a case it will this time be hoping to win. It will be up to the judiciary to decide the rather technical matter of whether the gender recognition reforms interfere with U.K. equality laws. But, as ever in the now perennial disputes between the British and Scottish governments, there is far more at stake politically – including the future of the United Kingdom itself.

Categories / Civil Rights, Government, International, Law, Politics

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.