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Scottish and UK governments set for new clash over gender recognition reforms

17 January 2023

By Will Neale

The UK Government sparked an unprecedented row with the Scottish Parliament yesterday after moving to block the Gender Recognition Reform Bill passed by MSPs in Holyrood last month. 

The legislation would deliver significant reforms to the existing provisions for transgender people. Crucially, the bill both lowers the age to apply for a gender recognition certificate from 18 to 16 and removes the requirement for an individual to have been diagnosed with gender dysphoria by a doctor, with applicants required to live in their new gender for three months, down from two years.  

First Minister Nicola Sturgeon used a significant amount of political capital getting the bill through the Scottish Parliament. Sturgeon first proposed the bill over six years ago, with much of the intervening time spent in long-running consultation - and it has been a personal mission ever since.  The final bill was passed 86 – 39 with support from the SNP, Scottish Labour and the Scottish Greens. 

After weeks of speculation, the Prime Minister has decided to invoke section 35 of the Scotland Act, which allows Westminster to prevent devolved legislation that impacts reserved matters - in this case the Equality Act 2010 – receiving Royal Assent. The power has never been used before and has, as expected caused outrage in Holyrood, with Sturgeon insisting the legislation does not affect reserved matters and calling the move a “full frontal attack on the will of the Scottish Parliament”. Sturgeon has framed Westminster’s response as direct interference in a devolved area, which some unionists have warned will drive further support for independence. But some senior SNP figures have expressed concerns about the legislation, briefing that the polarised nature of the debate around the reforms makes it the wrong subject for a 'democracy denied' campaign about Westminster interference. 

While the UK Government has said it is open to the bill returning to the Scottish Parliament to be amended, the Scottish Government is more likely to make a legal challenge than re-open the legislation. A challenge to the use of section 35 could result in another devolution case reaching the Supreme Court, just months after the SNP's failed attempt to legislate unilaterally through the Scottish Parliament for an independence referendum.  

Labour Leader, Keir Starmer said on his weekly LBC call in that believed 16 was too young to be able to change genders, indicating that he may not oppose the government strongly on its section 35 decision. This causes a headache for Starmer on two fronts. Firstly, a significant number of Labour MPs in Westminster support the legislation and would want to see similar reforms in the rest of the UK. Secondly, Scottish Labour MSPs were whipped to vote for the legislation, putting him at odds with the Scottish wing of the party he leads. Labour MSP Monica Lennon has said she's “very disappointed” and urged Starmer to be “better briefed” on issues being debated in Holyrood. 

Looking ahead, it appears the SNP is prepared to enter another lengthy legal challenge as the relationship between Westminster and Holyrood continues to deteriorate.