On the 22nd of December, after 7 years of intense toxic debate, the Scottish Parliament finally voted through the Gender Recognition Reforms bill. Since then the UK Government has outlined two plans to undermine Scottish gender reforms. Both plans have massive ramifications and will fail.
In the three days of debate leading up to the vote on Scottish gender reforms, Scottish Conservatives tried to filibuster and delay as much as possible. This resulting in Scottish politicians staying up, debating and voting into the early hours of the morning. With a vote of 88 to 33 and after three incredibly emotional days the propose reforms finally passed.
So what are Scottish gender reforms? If you are resident in Scotland you will soon be able to apply for a gender recognition certificate after three months of living in the “acquired” gender. Then after a further three months of reflection that’s it done, you have just changed your legal sex. You can now be taxed, get married and die under the correct gender.
I believe we could be underestimating how big of a deal this legislation is. Scottish gender reforms aren’t world leading and technically don’t offer any new rights. Trans people in the UK already have the right to change their birth certificates albeit through a process that is needlessly medicalised and traumatic.
The move towards a new model is a win for self determination and bodily autonomy. But most importantly, when Scottish gender reforms becomes law and nothing bad happens it challenges this manufactured culture war and strengthens the case to implement self ID in the rest of the UK.
In becoming law, the GRR bill will expose gender critical concerns as being entirely misplaced just like the many other countries that have introduced self ID before Scotland. In the UK however, the conservatives want to keep the gender critical movement alive to encourage people to be angry at trans people rather than the Government.
The UK Government was keen to leave no time to celebrate. Alister Jack, Secretary of State for Scotland for the UK Government, stated right after the vote that his Government shares concerns of gender critical activists and declared “We will look closely at that, and also the ramifications for the 2010 Equality Act and other UK-wide legislation, in the coming weeks – up to and including a section 35 order stopping the bill going for Royal Assent if necessary.”
A section 35 order has never been used before; it’s completely unprecedented. However, those designing Scottish gender reforms did it with the understanding if it over reaches into a reserved area the UK government will use that to destroy the whole bill in the courts. For example in stage three the Scottish Parliament genuinely wanted to give refugees and asylum seekers the right to get a GRC but couldn’t because it would mean legislating on areas reserved to a Parliament in London.
Therefore, to use a section 35 order would be a massive overstep and would trigger a constitutional crisis. The Scottish Government is likely to win in Court because Scottish gender reforms have been designed strictly inside a devolved framework.
There’s also the wider political context of Scottish independence. In 2013, polls showed less than a quarter of Scots wanted independence. Ten years later, it now floats around 50 percent. Misusing a section 35 order and ending up in the courts to prevent Scots treating trans people a wee bit nicer isn’t the sell British Unionism needs right now.
The Tories are also running out of time. A section 35 order can only be issued within four weeks of the bill passing. At the time of writing they have ten days left before the bill will go onto Royal Assent and become law.
That’s why the Conservatives have a second plan. The UK Government can refuse to acknowledge Scottish certificates. This means if you have a Scottish GRC and relocated to England that certificate would become worthless. However, it would be hypocritical to accept GRCs from countries that have self ID without recognising Scotland’s own system of self ID. That’s why this week Kemi Badenoch UK Minister for Women and Equalities said:
“We are finalising details of overseas countries and territories to be removed from the list via an affirmative Statutory Instrument. These comprise countries and territories where there is a clear indication that the country now no longer has a system at least as rigorous as those in the Gender Recognition Act 2004. We are undertaking a thorough checking system to verify our understanding of each overseas system in question.”
It’s transparent that the UK Government is seeking to change its relationship with countries around the world just to avoid respecting devolution. In going down this route, Kemi Badenoch is grouping Scotland with a list of “overseas countries and territories”. To put it simply the conservatives need to decide whether they want to protect Scotland’s place in the Union or the gender critical movement. It can’t do both.
This isn’t all without a cruel sense of irony. Scotland massively failed in trying to become its own empire, became bankrupt and then joined England to be a partner in the British Empire. We created horrific conditions around the globe and destroyed cultures. After centuries of Britain enforcing gender standards throughout the world it’s fitting to now see gender destroying Britain.
