Scotland’s parliament voted to pass its Gender Recognition Reform bill in December, following in the footsteps of 18 other countries that have removed barriers for transgender people to legally change their gender.
After months of debate and scrutiny, the bill was met warmly, passing through parliament 86 to 39, and called “a big step forward” by LGBTQ+ advocacy groups.
That was until earlier this month, when the U.K. government vetoed the bill. This marks the first time in Scotland’s history that the government has exercised such power, raising concern over the U.K.’s creeping influence into previously devolved issues.
What is Scotland’s Gender Recognition Reform Bill?
Scotland’s Gender Recognition Reform bill would have made it easier for trans people in Scotland to get a certificate legally recognizing that their gender is different from the one they were assigned at birth, without having a medical diagnosis of gender dysphoria—which can be costly to obtain. It also reduced the minimum age for gender recognition from 18 to 16. Similar laws have been adopted in several other countries, such as Argentina and Denmark.
In a statement, Nancy Kelley, the CEO of Stonewall, a U.K.-based organization which advocates for LGBTQ+ rights, said that the bill had “received more extensive scrutiny than any other legislation in the Scottish parliament’s history.”
Alister Jack, the British government’s minister for Scotland and a member of the Scottish Conservatives, who used Section 35 of the Scotland Act to veto the bill, said it was in conflict with the U.K.’s Equity Act, the 2010 legislation that broadly protects against discrimination in all of Great Britain.
He also expressed concern that the reforms would have an adverse impact on single sex clubs, associations and protections such as equal pay, and argued that they might create “significant complications” that could lead to “more fraudulent or bad faith applications.”
J.K. Rowling, the prominent Harry Potter author who lives in Scotland, has also come out against the bill and called it the “single biggest assault on the rights of Scottish women and girls in my lifetime.”
Rowling is a divisive figure and has previously been accused of transphobia.
Proponents of the bill have pushed back against such claims. Scottish First Minister Nicola Sturgeon said in October that the aim was to reform a process that was “degrading and traumatic for trans people.”
Constitutional Clash Over Section 35
The use of Section 35 has found the bill lodged into a much bigger debate over the U.K.’s power in Scotland, especially considering the veto came not long after the U.K.’s Supreme Court ruled last November that the Scottish government could not hold a referendum on independence without the U.K. government’s approval.
The bill’s veto has ignited calls for Scotland to seek independence from the U.K., but this alone won’t be the driving force, says Nicola McEwen, politics professor at the University of Edinburgh. Rather, the focus is on how the U.K. chooses to exercise its power in the future.
“This is the first time that Section 35 has been used. If it’s a one off, then it probably won’t have a long term impact,” McEwen says.
“If, however, the U.K. government sees this as a tool that they have at their disposal, and are more willing to use it, then that could potentially erode perceptions of the authority of the Scottish parliament—particularly if they do on an issue that is more supported.”
In recent years, British support for transgender rights has fallen, according to a 2022 YouGov poll, making the bill an “easy target” for the government to test the limits of the devolution of power that has defined Scotland’s relationship with the U.K. in the last two decades.
Scotland’s modern parliament was formed fairly recently, when the Labour party devolved power across the U.K., giving Scotland control of issues such as income taxes and education while keeping major policies like immigration and national security in the hands of the U.K. government in Westminster.
But lately, the U.K. government has been testing the limits of devolution more so than they have in the past, McEwen says, as seen with the Levelling Up Fund and the UK Internal Market Act.
“The U.K. Government seems to want to have a presence in Scotland, in areas that are otherwise devolved, because it sees itself as legitimately acting on behalf of the U.K. in every area,” McEwen says.
What Happens Next?
Nicola Sturgeon told the BBC that the issue would “inevitably end up in court,” saying that the Scottish government would “vigorously defend this legislation.” Sturgeon accused Jack of launching a “direct attack on the institution of the Scottish Parliament.”
Once in court, the question will be whether the legislation does in fact undermine the policy set within the Equalities legislation––which is anyone’s guess. “There’s definitely different legal opinions on that,” McEwen says.
The issue has become about more than gender recognition, as it brings into question the authority of the Scottish parliament and courts. For nationalists who believe strongly in Scottish independence, it could show the weakness of devolution compared to independence, and increase support for a move toward independence.
But in Glasgow, where hundreds gathered last weekend to protest the bill’s block, the more immediate concern was the blow to trans rights, and the fear of the impact a continued use of Section 35 might have on other marginalized communities.
That the long-negotiated bill won’t be able to help the trans community is a loss to advocacy groups. In the statement released the day of the veto, Kelley said the decision “treats trans people as a threat to be contained, not citizens to be respected.”
“This is the nuclear option,” she said.
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