The UK government has blocked a new law designed to allow transgender people in Scotland to change their legal gender without a medical diagnosis – a controversial move that has fueled the already highly emotional debate over Scottish independence.
Nicola Sturgeon, Scotland’s First Minister, called it “a frontal assault on our democratically elected Scottish Parliament and its ability to make its own decisions on devolved matters,” in a post on Twitter Monday.
Scottish Secretary Alister Jack previously announced that Westminster had taken the highly unusual step to prevent the Scottish bill from becoming law, amid concerns about its impact on UK equality laws – a justification that trans rights groups reject.
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Scotland passed a new law in December to make it easier for people to change their legal sex.
Under the current system, transgender people have to jump through a number of hoops to change the gender marker in their documents. They must have a medical diagnosis of gender dysphoria – a condition defined by the distress caused by the discrepancy between a person’s body and their gender identity – and prove they have been living in their chosen gender for two years. They must also be at least 18 years old.
The new rules would drop the required medical diagnosis and move instead to self-determination. The waiting period will be reduced from two years to six months and the age limit will be lowered to 16 years.
Campaigners have long argued that the current process is too bureaucratic, expensive and intrusive. The Scottish Government held two major public consultations on the issue and proposed the new, simpler rules.
“We believe that transgender people should not go through a process that can be humiliating, intrusive, upsetting and stressful in order to be legally recognized in their lived gender,” the government said when it proposed the new rules.
In the end, an overwhelming majority of Scottish legislators voted in favor of the change – the final tally was 86 in favour, 39 against.
The bill provoked emotional reactions on both sides. The debate on the proposal was one of the longest and most heated in the history of the Scottish Parliament and the final vote had to be postponed after it was interrupted by protesters shouting “shame on you” to lawmakers.
Many human rights and equality organizations and campaigners welcomed the new rules, pointing to a growing number of democratic countries where self-determination is the norm.
The Equality Network, a leading Scottish LGBTI rights group, said that “after years of rising public prejudice against transgender people, things have moved forward.”
But the bill has also received huge criticism, including from “Harry Potter” author JK Rowling, who said the bill could have a detrimental effect on the rights of women and girls.
Rowling and other opponents of the bill argue the new rules will weaken protections for spaces designed to make women feel safe, such as women-only shelters.
The Scottish Government has rejected that argument, saying the law does not change rules about who can and can’t access segregated sex areas. It also said experiences from countries that have made similar changes have not had a detrimental effect on other groups.
Campaigners agreed. “There are no downsides,” said campaign group Stonewall. “For example, when Ireland did it, no one else was affected except transgender people who for the first time could have their gender recognized by the state in a simple and powerful way.”
Scotland has a devolved government, which means that many, but not all, decisions are made in the Scottish Parliament in Holyrood, Edinburgh.
The Scots can pass their own laws on matters such as health care, education and the environment, while the British parliament at Westminster remains responsible for matters such as defence, national security, migration and foreign policy.
The UK Government can prevent Scottish Bills from becoming law, but only in a few very specific cases – for example if it believes that the Scottish Bill would be incompatible with international agreements, with the interests of defense and national security, or if it it is believed that the bill would conflict with a UK law on the subject which falls outside Scotland’s jurisdiction.
Under the rules governing how Scotland is governed, London has four weeks to review a bill after it is passed by Holyrood, after which it is sent to the King for royal assent, the final formal step before it is passed. becomes law. .
In recent years, the British government has joined the debate over the anti-transculture wars in an effort to appeal to its traditional Conservative Party base and new working class voters in northern England.
Former Prime Minister Boris Johnson’s government had delayed a number of initiatives for the country’s LGBTQ community, including plans to make it easier for transgender people to change their gender markers in England and Wales.
The question remains whether it is an electorally viable strategy. But before becoming prime minister, one of Rishi Sunak’s first commitments during the 2022 Conservative Party leadership race was to protect “women’s rights,” he wrote in a Twitter post.
The post linked to an article in which an unnamed Sunak ally told the Daily Mail that Sunak would be drafting a manifesto opposing trans women participating in women’s sports and calling on schools “to be more careful in the way they teach about gender and gender.”
In his statement, Jack argued that the bill could have implications for equality legislation across the UK.
“The bill would have a significant impact on, among other things, UK-wide equality issues in Scotland, England and Wales. I have therefore concluded that (blocking it) is the necessary and correct course of action.”
But proponents disagree. Rights group TransActual told CNN in a statement that it saw “no justification” for the UK government’s decision to block the bill over concerns over UK equality laws.
“There is no justification for this action by the Scottish Secretary, Alister Jack. He will lose any lawsuit brought by the Scottish Government because the Equality Act is 100% independent of the Gender Recognition Act – and nothing in Scottish law changes that,” Helen Belcher, the chairman of TransActual, said in a statement.
“Trans people have never needed gender recognition to be protected under the Equality Act,” she added.
Tensions between London and Edinburgh over the issue of Scottish independence were already high.
When Scotland last held a referendum in 2014, voters rejected the prospect of independence by 55% to 45% – but something has changed since then, mainly because of Brexit.
People in Scotland voted to remain in the EU in the 2016 referendum and the pro-independence Scottish National Party has argued that Scots were being dragged out of the European Union against their will, pushing for a new independence vote.
The British government has said it will not agree to a new independence vote, and the British Supreme Court ruled in November that the Scottish government cannot unilaterally hold a second independence referendum.