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Scotland’s Radical Gender Legislation

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Scotland’s Radical Gender Legislation

The U.K. government has good reason to prevent the SNP’s new bill from becoming law. January 20, 2023
Politics and law
The Social Order

The U.K. government has intervened to prevent the Scottish National Party (SNP) from getting its new gender-recognition reform legislation into the statute books. In a historic first, Secretary of State for Scotland Alister Jack has invoked Section 35 of the Scotland Act 1998 to stop the bill from passing. The never-before-used power is designed to prevent Scottish bills that would have an “adverse effect” on laws over which the U.K. Parliament has jurisdiction.

SNP leader and First Minister of Scotland Nicola Sturgeon has called the decision an “outrage” and a “full frontal attack” on the Scottish Parliament. The SNP is likely to seek judicial review, so we can expect a protracted legal battle, starting in the Court of Session in Edinburgh and likely ending up in the U.K. Supreme Court.

Scotland has been able to act independently on this matter because of devolution. In a 1997 referendum, 75 percent of Scottish voters approved the creation of a devolved parliament in order to facilitate greater local control. A form of administrative decentralization, devolution led to the creation of the Scottish Parliament, otherwise known as Holyrood, in 1999.

The SNP wanted to make several significant amendments to current law as it relates to gender. Sturgeon wants the Gender Recognition Reform Bill to streamline the legal process for individuals to change their gender. Advocates say that this will make the process more dignified for transgender people.

Under current law, individuals must be 18 or older to receive a diagnosis of gender dysphoria by a medical specialist and must prove that they have spent at least two years living full-time as their preferred “gender identity.”

The Gender Recognition Reform Bill repeals the prior legislation involved in obtaining a gender-recognition certificate, a document that legally establishes a person’s preferred gender. The new bill would lower the two-year requirement to just three months (with a further three-month “reflection” period). It would also remove the need for medical experts, meaning that people will be able to change their gender legally without a medical diagnosis of gender dysphoria. One of the bill’s most controversial aspects is that it lowers the minimum age at which people can apply to change their gender from 18 to 16.

The Scottish Parliament passed the new bill by 86 votes to 39, but Jack’s argument is that Scottish votes should not affect U.K.-wide laws, which the Gender Recognition Reform Bill clearly does. Senior government figures in Westminster fear the new bill could lead to “trans tourism,” whereby a transgender woman could travel to Scotland, legally change gender, and then use this newly acquired official status to access female-only spaces, such as changing rooms, toilets, and hospital wards throughout England, Wales, and Northern Ireland.

The bill could also mean that 16-year-olds could receive legal recognition as the opposite sex without the need for a medical diagnosis, surgical intervention, or the administration of puberty-blocking drugs. For the Scottish government, being trans comes down to self-identification: all you need is to adopt a new set of pronouns.

Lowering the age to 16 could also put schools in violation of the law. As gender reassignment is a protected characteristic under the Equality Act of 2010, single-sex girls’ schools could face discrimination charges if they deny entry to biologically male pupils with a gender-recognition certificate.

Westminster is right to block the Gender Recognition Reform Bill as it currently stands. It would radically alter the way U.K. law functions and impose legal changes voted for by the Scottish Parliament on England, Wales, and Northern Ireland.

Devolution was created to give Scottish people control over their own affairs, not the affairs of others.

Photo by Peter Summers/Getty Images

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