Tensions are rising between the United Kingdom's national government and Scotland over transgender rights.
In a historic move, the U.K.'s conservative government blocked Scotland's progressive gender self-determination bill January 16, citing concerns about the effects the bill would have on the U.K. The U.K.'s position infuriated Scotland, reopening underlying desires to break away and become an independent nation.
In a first, the U.K. invoked Section 35 of the 1998 Scotland Act that allows the national government to overrule Scottish lawmakers under certain circumstances, such as national security and "incompatible" issues that affect the entire nation.
"After thorough and careful considerations of all the relative advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation," stated Alister Jack, the British government's secretary of state for Scotland, in a January 16 release.
Jack offered to work with the Scottish Parliament to submit another bill.
Scotland's Parliament passed the Gender Recognition Reform Bill 86-39 on December 22, 2022. Members of the U.K. Parliament had four weeks to decide if it would go to King Charles III's desk for his signature to become law, or to reject and return the bill to Scotland, where the country's lawmakers have little recourse. The deadline was at the end of this week.
The bill would have amended the Gender Recognition Act 2004 to simplify the process for transgender Scots to affirm their gender. Scottish lawmakers believe the current policy for transgender Scots to affirm their gender is too cumbersome and wanted to streamline the process.
Currently, transgender Scots must live in their preferred gender for two years and be evaluated and approved by a U.K. tribunal known as the Gender Recognition Panel. At the end of the process, they receive a gender recognition certificate. The certificate allows them to legally get gender-affirming surgery and revise their government-issued identity documents.
In the amended bill, Scottish lawmakers did away with the panel, empowering the Registrar General for Scotland to review and deny or approve applications, and shortened the lived experience requirement to three months for adults. The bill also lowered the age transgender Scots could begin the process to 16 years of age. Minors would be required to live in the gender with which they identify for six months.
Anti-transgender sentiment has risen in Britain over the last several years due in part to celebrities like "Harry Potter" author J.K. Rowling, who has tweeted anti-trans comments that have angered many former fans and endeared her to transphobes. The battle has given way to fraught arguments in parliament over transgender rights, and the National Health Service last year shut down England's only youth gender clinic, reported the New York Times.
Opponents of Scotland's bill argued that it would have a broad impact on Britain's equalities law and raised concerns about protecting women's spaces and separate rights for transgender people within the U.K.
Kemi Badenoch, the U.K.'s women and equalities minister, declared the new law could allow predatory males to misuse the law to access women's spaces if they self-declare themselves transgender, reported the Wall Street Journal. That's the same type of false anti-trans argument that has been made in the U.S. over anti-trans bathroom bills and other legislation.
Nicola Sturgeon, the Scottish National Party's leader, rebuffed the U.K.'s actions, stating that Scotland's interests are not being represented by Westminster. The U.K.'s position on the bill and transgender rights signaled to Scotland another reason to break away from its 316-year union with the U.K.
Scottish residents narrowly voted — 55%-45% — against independence in 2014, but in the 2016 Brexit referendum, a majority of Scots voted to remain in the European Union. The pro-independence SNP is pushing for another vote for independence, but the U.K. won't agree to hold one. The courts are on the U.K.'s side. In November, Britain's supreme court ruled against the Scottish government, blocking its ability to hold a second independence referendum.
"This is a full-frontal attack on our democratically elected Scottish Parliament and its ability to make its own decisions on devolved matters," Sturgeon wrote in a statement on Twitter following the January 16 decision. She vowed to "defend the legislation and stand up for Scotland's Parliament."
This is a full-frontal attack on our democratically elected Scottish Parliament and it's ability to make it's own decisions on devolved matters. @scotgov will defend the legislation & stand up for Scotland's Parliament. If this Westminster veto succeeds, it will be first of many https://t.co/3WXrjyivvC
— Nicola Sturgeon (@NicolaSturgeon) January 16, 2023
Scottish transgender rights organization TransActual told CNN in a statement that it saw "no justification" for the U.K. government's decision to block the bill over concern for U.K.-wide equality laws.
Stonewall UK called Westminster's move "a disgraceful low for the U.K. Government's approach to LGBTQ+ rights" in a statement leading up to the U.K. Parliament's decision January 9.
The organization accused the U.K. government of sending a message "that the U.K. government sees trans people as a threat to be contained, not citizens to be respected."
Scotland cannot overrule the U.K. government's decision. The country has only two courses of action: revise the bill for the Scottish Parliament to bring back to the U.K. government or take the U.K. government to court.
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