Rishi Sunak’s government is threatening to block a new law that would make Scotland the first part of the UK to introduce a self-identification system for people who want to change their gender.
In a major escalation that has brought tensions over transgender rights into the constitutional arena, Westminster has made it clear it will consider a “nuclear option” to block the bill from royal assent, a move that would anger campaigners and nationalists.
The Scottish Government has vowed to “vigorously challenge” any such intervention.
First Minister and SNP leader Nicola Sturgeon branded Sunak and his cabinet “deniers of democracy” after the high court ruled in October that Holyrood could not legally hold another independence referendum without Westminster’s approval. The decision has led to a rise in pro-independence polls over the past month.
The Scottish Government hailed what it called a “historic day for equality” after a vote on Thursday afternoon in which MSPs overwhelmingly backed plans to make it easier and less intrusive for people to legally change their gender and to extend the streamlined system for obtaining gender recognition certificate (GRC) of 16- and 17-year-olds.
But immediately after the 86-39 vote, which followed three days of intense and at times emotional debate at Holyrood, Scottish Secretary Alistair Jack said: “We share the concerns that many people have about some aspects of this bill, and more especially the safety issues of women and children.
“We will be looking carefully at this and the implications of the Equality Act 2010 and other UK legislation in the coming weeks – up to and including a section 35 order stopping the bill from being approved by the kingdom if necessary.”
While gender recognition is a devolved matter, equality legislation – which the new law will interact with – is reserved for Westminster.
Jack’s intervention follows UK government briefings ahead of the vote that the new law will create “legal chaos” and lead to “gender tourism” across the border with England.
Section 35 of the Scotland Act allows the Scottish Secretary to make an order prohibiting the Speaker of Holyrood from presenting a Bill for Royal Assent if he has reasonable grounds to believe that doing so will have an adverse effect on the operation of the Act as it applies to reserved questions.
Such a move is almost certain to be challenged by the Scottish Government, either through a judicial review or a direct reference to the high court, leading to the second legal battle between the two governments in recent months.
A Scottish Government spokesman said: “The Bill passed is within the legislative remit and was supported by an overwhelming majority, with all-party support. Any attempt by the UK Government to undermine the democratic will of the Scottish Parliament will be vigorously contested by the Scottish Government.
Westminster government officials will further study the implications of the bill before any decision is made on the next step, with Jack’s threat to block royal assent not thought to be imminent but very possible.
“This is the nuclear option, if you like,” said a UK government source. “The ideal, of course, is that we can point out to the Scottish Government all the constitutional problems that the bill creates as it stands and they can amend it before it is fully passed. But we are looking very seriously at all possibilities.”
Immediately after the vote, a spokesperson for the Equality and Human Rights Commission called on the UK government to provide clarity on whether Scottish GRCs would be recognized in the rest of the UK.
The constitutional dimension will heighten tensions over the bill, which saw the SNP’s biggest backbench rebellion in the party’s 15 years in power. In a sign of the tension, the debate was interrupted minutes before the final vote by protesters in the public gallery.
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Nine SNP MPs voted against their government, including Ash Regan, a former minister who quit in protest at a previous vote, but the bill passed comfortably with the support of the Scottish Greens, Labor and the Scottish Liberal Democrats. Two Labor members – who were beaten to vote Yes – also rebelled, while three Tories who were allowed a free vote backed it.
The bill was passed in a special extended session, six years after it was first mooted by Sturgeon, who has been a consistent and passionate supporter of the change. The Bill followed two of the largest public consultations in the history of the Scottish Parliament.
Introducing the final version of the Bill to Parliament, Social Justice Minister Shauna Robison insisted that applying for a GRC under the new system would continue to be a “substantial and important legal process”, with safeguards being enhanced during the passage of the Bill, and she said , that the bill “does not change public policy … around the provision of single-sex spaces and services.”
She told MSPs: “Transgender rights do not compete with women’s rights and, as so often before, we can make things better for everyone when those discriminated against act as allies, not adversaries.”
But the Scottish Conservatives’ equality spokeswoman, Rachel Hamilton, told Robison that her government had not brought the people of Scotland with it and that “in the rush to make the process a little easier for trans people, the government is making it easier for criminal men to attack women”.
During the third stage amendment process, which took place in two marathon sessions ending after midnight on Tuesday and Wednesday this week, Holyrood saw an unprecedented level of cross-party cooperation as members moved to address concerns about the abusive men who take advantage of the new system.
Vic Valentine, manager of Scottish Trans, said the “simple but important” changes would allow trans people to live “with the dignity and recognition everyone deserves”.
They added: “Trans people in Scotland will today be pleased and relieved that this bill has been passed, after many years of difficult public debate, which has often felt like people are talking about us and not for us.”
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