How will constitutional showdown over gender laws play out?

The protracted legal and constitutional battle ahead is unlikely to resolve questions of gender identity or political autonomy, says Sean O’Grady

Alister Jack’s decision to block the bill has been described as a ‘nuclear option’ (PA)

Scotland’s parliament recently passed a bill making it easier for people in Scotland to “self-identify” and reassign their gender. Before the bill gains royal assent and becomes law it needs to be consistent with UK law as determined by Westminster. UK ministers have indicated they will block the legislation.

Why is a Scottish law about gender reassignment causing so much trouble?

The issue of trans rights is controversial in any setting, as demonstrated by the extraordinary way trans people and JK Rowling respectively have found themselves the target of so much vile abuse, especially on social media.

Trans rights have particularly divided the left, as we see from the way Keir Starmer distanced himself from MSPs on the subject of the age that someone can legally change their gender. But it’s also been an issue on the right; Penny Mordaunt’s Tory leadership campaign was hampered by her own past progressive statements that trans women were women. Suddenly, the question “can a woman have a penis?” became the most dangerous in British politics.

So during the final voting on the Gender Recognition Reform (Scotland) Bill in Holyrood, there were loud and graphic scenes in the public gallery, and much-impassioned argument inside and outside the chamber. The bill was carried by 86 votes to 39, with cross-party support, but it is a polarising question in Scotland as elsewhere.

Overlaying the arguments about the rights of trans people are some equally sensitive rights – of Scotland and the intense resentment among some of a Scottish law being interfered with by a British government in London. This hasn’t happened since devolution was enacted some 25 years ago. There’s a lot of anger around.

What are the legal issues?

Certain areas of public policy and the constitution were reserved to Westminster at the time of the 1998 Scotland Act, with adjustments made since. Most dividing lines are clear and obvious: international treaties, the pensions system and postal services, for example. Less clear are matters relating to discrimination and gender identity. Thus, the provisions of the UK Equality Act 2010 and the way unlawful discrimination on the grounds of sex and/or are defined are, arguably, at odds with the Scottish bill. If a person aged 16 has their gender reassigned in Scotland two years earlier than would be possible lawfully in the rest of the UK, do they have the right to be treated under their “new” gender in the rest of the UK if they move?

The basic distinction seems to be between “territorial” and “personal” rights, and the laws and the status of the bodies such as the UK Equalities and Human Rights Commission (EHRC) may be conflicted. Rights under the Scottish bill are easily exercisable in Scotland, but not necessarily in England or the rest of the UK. The analogy might be with people who have the right to drive a car in foreign countries coming to the UK and arguing that their foreign driving licence means they also have a right to drive on UK roads, which is not necessarily so.

What are the political issues?

It’s about Scotland’s right to make its own laws for its own people. Aside from the moral and practical arguments about trans rights, women’s rights, safe spaces, competitive sports, refuges and prisons, there are wider political forces at work. A fair and balanced view of the motivations of the Scottish government in pursuing the matter might conclude they did so with the following motives: because they believe in equal rights for trans people and that they are compatible with women’s rights and other rights; to demonstrate that Scotland, as governed by the SNP and Greens, is the most progressive part of the UK, or would be if allowed to do so independently; to thus strengthen the case for independence, and a second referendum, by showing the limits to Scottish autonomy imposed by Westminster and Whitehall. Sunak’s arguments are also a mix of the legal, political and moral – asserting the need for the UK as a whole to have a workable framework of laws, and raising questions about lowering the age limit for self-identification and the safety of women.

What happens now?

UK ministers can use Section 35 of the Scotland Act if they have “reasonable grounds” to believe that any proposed legislation passed by the Scottish parliament would have an “adverse effect on the operation of the law as it applies to reserved matters”. It prohibits Holyrood's presiding officer from submitting the bill to the King for royal assent (thus keeping the monarch above the fray). Scottish Secretary Alister Jack’s decision to use this power – the first time it has been invoked – is likely to result in a political campaign by Scotland’s government, followed by a legal challenge. LGBT+ charity Stonewall has described the block as a “nuclear option” that could turn a debate about transgender rights and gender recognition into a broader row over the devolution settlement.

Is there a way though?

With goodwill and compromise, perhaps, but there’s no prospect of that. One legal route might be to pass a UK law that asserts the rights of those who’ve undergone legitimate gender self-identification in Scotland to be recognised as such in the rest of the UK. Or the new special right – not available to others – might be restocked to those who are ordinarily resident in Scotland (given that there is as yet no such thing as a “Scottish citizen”).

Either way, the issue will end up in court and take months if not years to settle. Inevitably the two issues – independent and trans rights – will become mixed up in a way that’s unhelpful to either debate, and trans people may find themselves “weaponised” in the process. Emotionally charged and important as the issue is, it seems unlikely it will move the dial politically. Whatever happens won’t change many minds either on support for independence or their party loyalty at the next general election.