by Joan Smith
Monday, 9
January 2023
Debate
10:00

Scotland’s gender reforms will spark a constitutional crisis

Is this all part of the plan for Nicola Sturgeon?
by Joan Smith
Women’s rights protestors in Edinburgh. Credit: Getty.

How on earth did we get here? A quarter of a century ago, when politicians were debating how devolution would work in Scotland, they envisaged disagreements about tax or national security. No one foresaw that a Scottish government would one day insist that men can become women at will — and pass a law allowing them to do so.

But that, incredible as it seems, is where we are now. It’s why we are hearing so much about the UK government giving consideration to issuing an order under Section 35 of the 1998 Scotland Act, a piece of legislation most people had barely heard of until last month. The Scottish Secretary, Alister Jack, moved fast in December, raising the prospect as soon as Holyrood passed the Gender Recognition Reform bill. An order would prevent the bill receiving royal assent, something many women in Scotland would welcome.


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It’s also the nuclear option, signalling a monumental struggle in the courts, and a constitutional crisis. Cynical observers wonder if that’s what the First Minister, Nicola Sturgeon, really wants, believing it would revive support for her flagging party. It’s certainly an odd hill to die on, given that we now know how few people identify as trans men or women. Last week, ONS data revealed that the figure in England and Wales is 0.2%, just under 100,000 individuals, and Scotland is a much smaller country.

Ministers have the power to block Scottish laws if they would have an adverse effect on the operation UK-wide legislation, in this instance the 2010 Equality Act. There is a legal argument to this effect because an Edinburgh court ruled last month that ‘sex’ in the Act doesn’t refer only to biological sex, creating confusion about the status elsewhere in the UK of someone holding a Scottish gender recognition certificate. 

The GRR bill removes virtually all safeguards in Scotland, allowing a man to be legally recognised as a woman without the need for a medical diagnosis of dysphoria. Even convicted sex offenders will be able to apply, a provision so extreme that it lends support to the idea that Sturgeon wants a battle with the UK government. 

If ministers issue a Section 35 order, the SNP-Green coalition would no doubt scream blue murder about Westminster frustrating the will of the Scottish people. That isn’t the case — a recent opinion poll showed that the main changes in the bill are opposed by two-thirds of the population — but it’s how the fight would be framed. Even so, UK ministers may think it’s a risk worth taking, given that this is one issue where they are closer to public opinion than any of the other parties.

Labour is streets ahead in the polls but the Labour leader, Sir Keir Starmer, has infuriated many party members with vague talk about ‘modernising’ the process of getting a GRC. If the UK government blocks the Scottish legislation, he will have to say where he stands, including whether he supports the introduction of self-ID in the rest of the country.

Other options, floated in national newspapers, include sending the Scottish legislation to judicial review or declaring that a Scottish GRC won’t be recognised outside Scotland. That would limit the damage, but it won’t help Scottish women who are furious about having their rights taken away. 

The UK government has less than two weeks to make up its mind, but it’s worth remembering how we arrived at this unprecedented situation. Indulging the delusions of gender extremists, under the rubric of ‘being kind’, has brought this country to the brink of a constitutional crisis. 

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Paul T
Paul T
27 days ago

I am no constitutional expert, but surely the UK government can declare that a Scottish Gender Recognition Certificate is not recognised in other parts of the UK. If this doesn’t help Scottish women who are furious about having their rights taken away, then Scottish women should stop voting for the SNP and vote in a different devolved government. Am I missing something?

Arkadian X
Arkadian X
27 days ago
Reply to  Paul T

Difficult to disagree, after all at the next round of elections the SNP will win again, so why should they change course?

Last edited 27 days ago by Andrea X
Ian Stewart
Ian Stewart
27 days ago
Reply to  Paul T

That would be the politically intelligent approach to take for the Tories – let Scots ‘enjoy’ becoming an attraction for sex tourists and the SNP vote should decline; and killing two birds with one stone, get the bonus of seeing Starmer and the Labour supporters of trans activists squirming, and losing women’s votes, as they defend this extremist position.

Dougie Undersub
Dougie Undersub
27 days ago
Reply to  Paul T

The UK has a list of countries whose gender recognition certificates are not recognised. However, adding Scotland to this list would amount to accepting that Scotland is another country. Would that not be a win for Sturgeon?

Jeni England
Jeni England
27 days ago

It is another country, has a slightly differnt legal system etc, it just also happens to be part of a union of four countries.

Arkadian X
Arkadian X
27 days ago
Reply to  Jeni England

It is not another country. It is just one country.

Methadras Aszlosis
Methadras Aszlosis
27 days ago

The circus of the absurd continues and will continue until this nonsense is confronted directly for the fraudulent weaponized ideology that it is. The world is now going to have to confront that lunatic and insane people are driving public policy and that politicians are seemingly in a zombie like state going with it.

Normal thinking people are so distracted that they either don’t care via apathy, don’t know how to confront this lunacy, or simply wish it to continue for fear of being cancelled. Fearlessness in the face of this mind virus needs to be demanded.

Andrew Buckley
Andrew Buckley
27 days ago

This seemed to me to be yet another attempt to push how different Westminster and Holyrood are to further the cause for independence.
Hot on the heels of another referendum request/court judgement. I expect there will be more of the same down the line.
Sturgeon and SNP seem to spend far more time fabricating “issues” with Westminster than actually governing!

Stuart McCarthy
Stuart McCarthy
27 days ago

And since convictions for sexual offences will be no bar to transition in Sturgeon’s Gorbals paradise, the bloke in a dress next to you in the ladies’ room could be a caring rapist.

Jeremy Bray
Jeremy Bray
27 days ago

It would be good to see the Tory Party standing up for women (and men who don’t wish to lie about people’s sexuality) and oppose this malign bill however they chose to proceed tactically. The important thing is to stand for decency and oppose an ideology of deliberate lies.

Anyone who has seen the YouTube interview by Jordan Peterson of Chloe Cole who decided to de-transition after being led towards surgical mutilation and testosterone treatment from the age of 13 would need a heart of stone to wish to see more of this barbarism perpetrated on young men and women.

Of course one should have sympathy for people troubled over their sexual identity but erasing the truth in the name of purported kindness to a few at the expense of confusion and risk to the many is not the way to proceed.

I can’t think of a better way for the Tory party to secure the moral high ground and the gratitude of many who are not their natural supporters from those Parties that wish to enshrine deliberate untruth into legislation.

cara williams
cara williams
27 days ago

we have self ID n new zealand and it’s a nightmare. people need to take this very seriously. it’s not only about women’s spaces, and the chemical and surgical mutilation of healthy children, it’s an ideology that rapidly permeates through culture robbing people of reality and goodness.

Jim Veenbaas
Jim Veenbaas
27 days ago

There might be 27,000 trans people in Scotland, – maybe. And what percentage of those people support a law that allows sex offenders to automatically change their gender? Utter madness.

Lennon Ó Náraigh
Lennon Ó Náraigh
27 days ago

The Dress Act was repealed in 1782. Since that date, there has been no legal restriction in Scotland on men wearing skirts. So the new Gender Recognition Act would seem to be entirely unnecessary.

William Shaw
William Shaw
27 days ago

Why should ministers help the SNP by issuing a Section 35 order?
Let devolution take its course. The GRC would only be valid in Scotland and if the Scots don’t like the Scottish law they can vote for a different party.
The decision on what to do seems like a “no brainier.”

Dougie Undersub
Dougie Undersub
27 days ago
Reply to  William Shaw

“The GRC would only be valid in Scotland.”
Not true. Unless the UK Government takes some action it will be as valid in England as any other Scottish certification.

Gerald Arcuri
Gerald Arcuri
26 days ago

Real men don’t want to become women. And, biological men never can. Scotland the Brave has become Scotland the Utterly Insane.

michael stanwick
michael stanwick
27 days ago

…under the rubric of ‘being kind’,…
And is that unbridled “empathy” and “compassion”? And if so, who uncorked that bottle of emotion?

Simon McQueenie
Simon McQueenie
26 days ago

Great news. And now Drakeford says that he’d be in favour of implementing the same legislation in Wales if the Senedd had the power to do so.

BBC News – Mark Drakeford backs Scottish gender recognition move
https://www.bbc.co.uk/news/uk-wales-politics-64228256

Last edited 26 days ago by Simon McQueenie
Samuel Ross
Samuel Ross
26 days ago

I’ve said it before, and I’ll say it once more: Scots are weird.There. I said it, so you don’t have to.

Dennis Anderson
Dennis Anderson
15 days ago

I am now ashamed to call myself a Scotsman. Dennis in Hereford

Ethniciodo Rodenydo
Ethniciodo Rodenydo
27 days ago

“That would limit the damage, but it won’t help Scottish women who are furious about having their rights taken away.”
Precisely what rights are being taken away?

Stuart McCarthy
Stuart McCarthy
27 days ago

Stuart McCarthy
The rights include not having blokes in a dress in the ladies’ room.

Andrew Buckley
Andrew Buckley
27 days ago

The right to stand in Court and accuse John of raping you and not have Joanna saying she didn’t do it!

Lennon Ó Náraigh
Lennon Ó Náraigh
27 days ago

The right of a rape victim to request a medical examination by a female doctor.

Alison Wren
Alison Wren
27 days ago

The right of a woman in prison to have a cell mate of the same sex… hence one who couldn’t possibly have been a rapist of adults or children

Simon McQueenie
Simon McQueenie
26 days ago

The right to not compete at sport against people who have been through male puberty. Safety and Fairness vs Inclusion.

Johan Grönwall
Johan Grönwall
26 days ago

The right not to have a wo-man changing clothes in the womens dressing room together with your young daughter.

Gorka Sillero
Gorka Sillero
26 days ago

you didn’t think this one through, did you?