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Alister Jack, the British government’s minister for Scotland, told the U.K. Parliament Tuesday that proposed legislation would result in two different gender recognition programs in Britain, and that it might lead to more fradulent applications.
Westminster’s move set off an immediate firestorm. Trans rights group condemned the move and Scottish nationalist politicians branded Jack’s decision undemocratic. Scottish leader Nicola Sturgeon said that her government is likely to challenge the veto in court.
Scotland — which has been part of the United Kingdom for more than 300 years — has its own elected government that controls matters such as education and justice. Advocates for Scottish independence, which include Sturgeon, have grown in prominence in recent years, though London provides some funds for state spending and is responsible for issues such as defense.
Here’s what to know about transgender rights in Britain and the potential fallout from the U.K. government’s decision.
What is Scotland’s Gender Recognition Reform Bill?
The Scottish Parliament passed a bill with cross-party support in December that lowers the age — from 18 to 16 — at which people can apply for a gender recognition certificate.
The bill would also eliminate the need for a medical diagnosis of gender dysphoria — the feeling of distress caused by a mismatch between assigned gender and gender identity — which can be costly and challenging to attain. Applicants above the age of 18 would be allowed to be recognized in what Scotland calls their “acquired gender” after three months living in it; 16- and 17-year olds need to wait six months.
That is a change from the status quo, which requires applicants to provide two medical reports and live in their acquired gender for two years.
“The bill as passed would introduce a simpler and fairer way for trans men and women to be legally recognized as who they truly are, allowing them to live with the dignity we all deserve,” said Vic Valentine of advocacy group Scottish Trans in a statement.
Scotland is the 10th European country to pass such law, which would bring it closer to regulations in U.S. states such as New York, where applicants can have their gender identity legally recognized at age 17 and without the need for a medical diagnosis.
Why is the issue so contested?
As in the United States, transgender rights are part of a broader culture war between social conservatives and liberals. (Some left-leaning British feminists have also allied with the right on this issue.) Britain’s ruling Conservatives previously took a more liberal stance on the issue but recent leaders such as Prime Minister Rishi Sunak have criticized some transgender campaigning efforts as “woke nonsense.”
Jolyon Maugham, director of the Good Law Project nonprofit, which has advocated for trans rights, called Tuesday’s decision “pretty ugly” and suggested that the British government was trying to use the issue to distract from domestic problems.
Opponents of the Scotland bill argue that it could jeopardize women and children’s safety by making it easier for men to access single-sex spaces such as bathrooms and changing rooms. Scottish author J.K. Rowling, who is one of its most influential critics, wrote in 2020 that the bill “will in effect mean that all a man needs to ‘become a woman’ is to say he’s one.”
In reality, the Scottish bill would make lying about gender identity on an application punishable with up to two years in prison. In the United States, transgender women are also statistically much more likely than cisgender women to be murdered.
There has been a slow, recent decline in British support for transgender rights, according to a 2022 YouGov poll. The survey found that while most Britons agree that people should be able to socially identify as a different gender, they oppose making it easier to be legally recognized in one’s acquired gender.
While Edinburgh has the right to legislate on gender, the British government justified its intervention on the grounds that the bill has implications beyond Scotland. Jack said that the legislation could impact laws on equal pay and how single-sex associations and clubs are operated, and said that Sturgeon could choose to amend the bill.
Jack invoked a section of the Scotland Act that allows London to veto Scottish legislation that impacts matters that are considered “reserved” for the U.K. Parliament.
What are the political implications for Scotland?
London’s decision to halt the Scottish bill could further galvanize secessionist sentiment. Shona Robinson, a pro-independence Scottish minister, said that the move demonstrated the British government’s “contempt for devolution.” Sturgeon, the Scottish leader, suggested that London might seek to similarly overrule Edinburgh on other issues.
The British government could have used less intrusive measures, such as asking the U.K. Supreme Court to intervene, if it felt Scotland had overreached, said Maugham, the lawyer. He suggested that London instead chose a “nuclear option” that “marks a real deterioration in respect for the ability of people of Scotland to self-determine.”
However, John Curtice, a professor of politics at Strathclyde University in Glasgow said that it was not clear if there would be a boost for Scottish independence, as public opinion there is divided on the issue of trans rights.
Scotland’s gender recognition bill underwent two rounds of public consultations before it was taken up by the legislature, signaling broad support for transgender people. But the picture is murkier when people are asked about specific policies: a Sunday Times poll by Panelbase in December found that 55 percent of Scottish respondents opposed the move to lower the age for legally changing gender.
The independence movement suffered a major blow in 2014, when 55 percent of Scots voted to remain in the United Kingdom. But pro-independence advocates say Britain’s subsequent vote to leave the European Union, which was opposed by a majority of Scots, changed the circumstances. The Supreme Court also ruled in November that Scotland cannot hold a referendum without consent from London, and the British government has repeatedly said it is opposed to a second independence vote.
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