The UK Government for the first time ever is using powers (Section 35) from the Scotland Act to veto the passing into Scots Law the Gender Recognition Bill overwhelmingly passed by the Scottish Parliament. “This is about more than our politics and our laws. This is about who we are, how we carry ourselves.” Donald Dewar
Here is a roundup of reaction from Scotland’s elected political leaders.
Firstly the statement, in full, from Alister Jack, Secretary of State for Scotland giving the UK Government’s reasons for the action as he presented them to the House of Commons on 17th of January 2023.
Mr Speaker, today I will make an order under section 35 of the Scotland Act 1998 preventing the Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent.
This Order will mean the Presiding Officer of the Scottish Parliament will not submit the Bill for Royal Assent.
This Government believes however that transgender people deserve our respect, our support and our understanding.
My decision is centred on the legislation’s consequences for the operation of reserved matters, including equality legislation across Scotland, England and Wales.
The Scottish Government’s Bill would introduce a new process for applying for legal gender recognition in Scotland.
The changes include reducing the minimum age a person can apply for a Gender Recognition Certificate from eighteen to sixteen, and removing the need for a medical diagnosis and evidence of having lived for two years in their acquired gender.
The Bill would amend the Gender Recognition Act 2004, which legislated for a single gender recognition system across the UK and which received a Legislative Consent Motion from the Scottish Parliament.
The approach taken in the Scottish Government’s Gender Recognition Reform Bill was the subject of intense debate in the Scottish Parliament.
A number of significant amendments were tabled right up until the end of the Bill’s passage.
And the Minister for Women and Equalities corresponded with and met with the Cabinet Secretary Shona Robison to discuss the UK Government’s concerns, before the Bill had reached its final stage.
Mr Speaker, I have not taken this decision lightly.
The Government has looked closely at the potential impact of the Bill and I have considered all relevant policy and operational implications, together with the Minister for Women and Equalities.
And it is our assessment that the Bill would have a serious adverse impact, among other things, on the operation of the Equality Act 2010.
Those adverse effects include impacts on the operation of single-sex clubs, associations and schools, and protections such as equal pay.
The Government shares the concerns of many members of the public and civic society groups regarding the potential impact of the Bill on women and girls.
The Bill also risks creating significant complications from having two different gender recognition regimes in the UK and allowing more fraudulent or bad faith applications.
The Government is today publishing a full Statement of Reasons, alongside the order, which will set in full the adverse effects the Government is concerned about.
Mr Speaker, I would like to address the claims put forward by those who would seek to politicise this decision and claim that this is some kind of “constitutional outrage” and you can hear them Mr Speaker, you can hear them.
The section 35 power was included in the Scotland Act, which established the Scottish Parliament.
This the first time the power has been exercised and I acknowledge that this is a significant decision.
The powers in Section 35 of the Scotland Act are not new, and this Government has not created them. They have existed as long as devolution itself.
And we should be clear that the power was included in the Act by the architects of devolution for a reason. Donald Dewar himself noted that the power struck an “important balance”.
The section 35 power provides a sensible measure to ensure that devolved legislation does not have adverse impacts on reserved matters, including on equalities legislation such as the Equality Act 2010.
This is not about preventing the Scottish Parliament from legislating on devolved matters but about ensuring that we do not have legal frameworks in one part of the UK which have adverse effects on reserved matters.
And we should be clear that this is absolutely not about the UK Government being able to veto Scottish Parliament legislation whenever it chooses, as some have implied.
The power can only be exercised on specific grounds – and the fact that this is the first time it has been necessary to exercise the power in almost twenty-five years of devolution emphasises that it is not a power to be used lightly.
In the instance of the Gender Recognition Reform (Scotland) Bill, I have concluded that the bill would have serious, adverse effects on the operation of the Equality Act 2010.
As I set out in my correspondence with the First Minister yesterday, I would prefer not to be in this situation.
The UK Government does all we can to respect the devolution settlement and to resolve disputes.
It is open to the Scottish Government to bring back an amended Bill for reconsideration in the Scottish Parliament.
So to conclude, Mr Speaker, I have set out to the Scottish Government that should they choose to do so, I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation.
And I commend this statement to the House.
Click on this link for more on the discussion in the House of Commons: Scotland Act 1998: Section 35 Power, Hansard
Ian Murray is Labour’s only MP in Scotland. He said this was an ‘incredibly serious moment’. In his remarks he attacked both the Scottish Government and the UK one.
“During the Bill’s passage, Scottish Labour made clear that if it was to work, clear guidance was required. The SNP Scottish Government said that it was for the Equality and Human Rights Commission, not them as the Government, to provide such guidance. Why does the Secretary of State not instruct the EHRC to provide that guidance, look at the cross-border issues that he has mentioned, and provide recommendations in respect of the interaction with the Equality Act? Both Governments should commit themselves to accepting those conclusions—or is the Secretary of State saying that the ball is in the Scottish Government’s court to bring back amended legislation, and that he is now backing out of the process?
“We support the principle of updating the Gender Recognition Act, which was world-leading when the Labour Government introduced it in 2004 but now, two decades on, requires modernisation to humanise it and remove the indignities involved in this dreadful process. We have ended up in a legal and constitutional impasse. “
Dr Philippa Whitford the SNP MP gave her reaction next. She reminded the House of Commons that the Scottish Parliament had overwhelmingly passed this Bill, and that many other countries in the world had similar legislation.
“The vetoing of this legislation is an unprecedented attack on the Scottish Parliament, which passed the Gender Recognition Reform (Scotland) Bill by 86 votes to 39, including MSPs from every party.
“Gender recognition is a devolved policy area and this does not change the Equality Act 2010 or give any additional rights to those with a certificate. It shortens and simplifies the process and, particularly, ends the requirement for a psychological diagnosis of gender dysphoria. This is in keeping with the guidance from the World Health Organisation and from the United Nations, which recommends change to a legal statutory process based on self-identification.
“This change has already been made by many countries over the last decade, including neighbours such as Ireland, Belgium and Denmark. This Government are threatening to end UK acceptance of international certificates. I find this bizarre, considering that the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), suggested a similar proposal in 2017.”
And she continued:
“What modifications to the Bill is he suggesting that would not include a return to the outmoded medicalised process? Why is he using one of the most marginalised groups in society to pick a fight with the Scottish Parliament? Is he seriously, after 300 years of different marriage ages and voting ages, suggesting that there can no longer be legal or age differences north and south of the border? And does he recognise that vetoing the Bill simply highlights the hollow reality of devolution?”
Christine Jardine MP for the Liberal Democrats reminded the House of her support for the Union. She said:
” I have looked at every clause and amendment of this Bill and spoken with MSP colleagues from all parties, searching for the place where it undermines the Equality Act and the protections that Act offers me and every other woman I know, in single-sex and other spaces. I cannot find it.
“Some of the UK’s finest legal minds have pored over this hugely scrutinised Bill in great detail and found no conflict. What I can see is where the Bill guarantees that it will not challenge the primacy of the Equality Act.
“Can the Secretary of State point me to the exact lines of this Bill that he feels undermine my rights and those of every other woman, and justify why he is playing fast and loose with the Union and doing so much to hurt the most vulnerable people in our society?”
Back in Scotland reaction has been of a similar nature with Tories supporting the use of the veto to limit what the Scottish Parliament can do and the other political parties in Scotland questioning how Section 35 is being used.
Highlands and Islands SNP MSP Emma Roddick said that the use of Section 35 should outrage the Scots electorate.
“This is an unprecedented and outrageous action from the UK Government.
“When people vote in Scottish Parliament elections, however they choose to vote, they believe they are voting for the people who will make decisions on devolved issues on their behalf.
“We spent hours upon hours debating this bill, which had hundreds of amendments, to ensure that we got it right. Amendments were accepted by the Scottish Government from every party, and MSPs from every party supported the bill in the end.
“The fact that it is perfectly possible for a Tory Government, that Scotland did not vote for, to step in and overrule a two-thirds majority in the Scottish Parliament should really scare and anger people.
“For me, this is a clear demonstration of how weak devolution is, how limited we are, and ultimately how broken this union is.”
The Scottish Greens equalities spokesperson, Maggie Chapman MSP, said that the Tory UK Government was ‘morally bankrupt’. She continued:
“In both Westminster and Holyrood, the Tories have amplified many of the worst tropes and smears. It has used less of a dog whistle and more of a foghorn when it comes to spreading prejudice and misinformation.
“With two public consultations, the full committee scrutiny process including evidence taken in person and in writing, and years of debate, this was one of the most scrutinised Bills in the history of our Parliament.
“You expect to see this kind of response from a Tory government, but to see Ian Murray and the Labour front bench trying to play both sides is very concerning.
“The vast majority of Labour MSPs rightly voted for this Bill, including their party leader, Anas Sarwar. They did so because they agreed that it was the right thing to do and was within the powers of the Scottish Parliament. Ian Murray and his UK Labour colleagues should listen to them.”
The Scottish Greens have launched an email campaign Tell the UK Government not to block the Gender Recognition Reform Bill Various protests are also being organised in Scotland’s cities to defend the rights passed in the Bill.
The World Health Organization (WHO) approved a major change to its global manual of diagnoses on May 25, 2019, to greatly benefit transgender people around the world. Historically, many medical systems, including those supported by the WHO, categorized being transgender as a mental health condition. But an evolving scientific understanding of gender and tireless advocacy by transgender activists around the world brought about changes to the WHO manual.
Governments around the world have used the previous classification as the basis for discriminatory policies that require diagnosis and sometimes other medical procedures before transgender people can be recognize before the law. Governments often require a “gender disorder” diagnosis as a precondition for changing transgender people’s names and gender markers on official documents, imperilling basic rights like work, education, and travel.
The Bill passed by the Scottish Parliament, and now vetoed by the UK Tory Government, would have ended the requirement for a psychological diagnosis of gender dysphoria in Scotland.
The process for legal recognition of gender identity should be separate from any medical interventions says WHO. In 2015, the World Professional Association of Transgender Health called on governments to “eliminate unnecessary barriers and to institute simple and accessible administrative procedures for transgender people to obtain legal recognition of gender.”
That is what the Scottish Parliament voted to do. The Tory UK Government didn’t agree with it and now it is stopped in its tracks.