Is this all part of the plan for Nicola Sturgeon?
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.