Holyrood's vote puts Scotland on a collision course with Westminster
Far from being a rabid bunch of far-Right ideologues, the Tories at Westminster are blinded by a reflex liberalism in which moral questions are treated as a matter for individual conscience.
The latest evidence of these political tendencies came on Thursday, as — unimpeded by even the faintest opposition from Westminster — Scotland moved a step closer to allowing people to ‘self-declare’ their gender with Holyrood’s vote on the Gender Recognition Act ‘reform’. This is a measure that would effectively render the sex marker on a birth certificate a matter for individual preference and some minimal paperwork.
Nine SNP MSPs defied the whip to vote against the Bill, with the SNP’s community safety minister, Ash Regan, resigning from her post at the last minute to do so. Away from the corridors of power, the policy has prompted fierce opposition by campaign groups. But still more than the SNP’s apparent disregard for the voices of ordinary women, what should concern us is Westminster’s myopia in allowing this legislation to proceed.
The history of ‘gender identity’ legislation is one of political short-sightedness about its far-reaching implications. When the Gender Recognition Act was debated in 2004, many at the time viewed it as a trivial and politically cost-free step on the golden path of social progress. Little regard was given to (for example) the ways in which it would interact with the Equality Act, or with safeguarding measures across bodies such as schools, hospitals and prisons. As a result, feminists have spent the best part of two decades in an uphill battle over the legal fiction that someone can change sex.
Should Scotland pass these measures, the knock-on effects will be even more chaotic. For example, it’s not difficult to imagine males circumventing medical gatekeeping on legal changes — the sex marker on a birth certificate — by doing the paperwork in Scotland. How will this interact with service provision in England? The potential for chaos is near-limitless.
More troubling still, the UK will then in effect be operating two distinct legal definitions of personhood simultaneously within a borderless political union. Scotland will have enshrined in law a conception of personhood for which biological sex is officially irrelevant. Meanwhile, in England sex will remain both legally and politically significant — not least, as a protected characteristic — and thus still inseparable from what a person is.
In other words, should the Scottish Bill pass, the question “What is a person?” will have a different government-endorsed answer depending on which side of the (invisible, entirely porous) border between England and Scotland you’re standing.
A political union cannot remain internally divided on such a fundamental question. Thus I predict that if the Bill becomes Scottish law, it will have one of the following consequences. Either Westminster will step in to halt this Holyrood overreach: a prospect that seems vanishingly slight given the Tories’ reflex libertarianism. Or the Scottish tail will end up wagging the UK dog, as Westminster legislates to align with Scotland. Or, if neither of these is politically possible, the Union will come apart.
This is a far-reaching and fundamental legal and political question. Our Conservative and Unionist Party leaders have abdicated leadership duty to hand-wave it as a devolved matter. This is beyond foolish: an ominous sign for their conservatism, and also for the Union.