by Michael Foran
Monday, 16
January 2023
Debate
07:00

Why Scotland’s gender reform bill affects the whole UK

Rishi Sunak has the power, and justification, to block the bill
by Michael Foran
Rishi Sunak meets with Nicola Sturgeon in Scotland last week. Source: Reuters.

Rishi Sunak said that he has “concerns” about the impact of Scotland’s Gender Recognition Reform Bill (GRR Bill); Keir Starmer has also now expressed similar concerns. The Bill, if it does what the Scottish Government intends it to do, could unilaterally change the operation of equality law throughout the United Kingdom. Respect for democracy will demand that the UK government has a say over that. 

The Bill seeks to change the rules around how one might change one’s legal sex. Specifically, if enacted, it will remove the requirement to be diagnosed with gender dysphoria, shorten the wait time from two years to three months, and lower the age to include children from the age of sixteen. This will be available to anyone resident in Scotland or who was born in Scotland and now lives elsewhere. 


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Currently, it is not entirely clear whether a Gender Recognition Certificate (GRC) issued under this system will be valid throughout the United Kingdom. This is certainly the intention of the Scottish government. The policy memorandum for the Bill claims that “although the Bill changes the process by which legal gender recognition can be obtained and the criteria, it does not change the effects of a GRC and the rights and responsibilities which a person has on obtaining legal gender recognition”. 

Despite the lack of clarity over how the law will operate, the argument is that the GRR Bill does not create a certificate that is distinct from the UK GRC. Instead, the legislation introduces a new method by which those resident or born in Scotland can apply for a UK GRC.

If that is correct, then the Scottish Parliament has just voted to change the operation of the law relating to legal sex changes for the entirety of the UK, without the consent of the UK Parliament. Leaving aside the potential effects this Bill could have on the reserved matter of equality law, there are also other issues of democratic legitimacy at play here. 

In response to an earlier announcement from Westminster that the Government is considering intervening to limit the effect that this Bill will have on the Equality Act, Scottish ministers stated: “Any attempt by the UK Government to undermine the democratic will of the Scottish Parliament will be vigorously contested by the Scottish Government.” But what happens when the will of Holyrood is to change the operation of a system throughout the United Kingdom, including where it has no democratic mandate to govern? 

Nicola Sturgeon’s Government either wants the two jurisdictions to have separate systems or it wants a joint system. But it simply cannot demand to have a joint system effective throughout the UK which can be changed unilaterally without the input or democratic consent of the rest of the UK. The GRR Bill interferes with British democracy by attempting to change the operation of both the Gender Recognition Act and the Equality Act — which apply across the UK — without the consent of Parliament in Westminster. Nobody in the rest of the UK voted for these changes.

What’s more, even if this Bill only applied in Scotland and did not have wider implications, the UK Government would still be entitled to a say. Devolution is not secession: the constitutional settlement protected in the Scotland Act demands that the UK generally respects Holyrood’s ability to pass laws for its own people and that the Scottish Parliament respects that certain matters are reserved for Westminster. The Equality Act’s continued operation throughout the whole of the United Kingdom — including in Scotland — is within the purview of the UK Government.  

If this Bill changes the operation of the Equality Act, then the UK Government is entitled to use its powers under section 35 of the Scotland Act to prevent the law from being enacted. That is the constitutional settlement and both sides need to respect it. 

Devolution is not a bludgeon to be used by one party alone: it is an important democratic agreement and should not be undermined by unilateral interference into reserved areas. Sunak must stand up to the pressure from the north.

Michael Foran is a Senior Fellow at Policy Exchange and Lecturer in Public Law at the University of Glasgow

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Tom Lewis
Tom Lewis
17 days ago

“Nobody in the rest of the UK voted for these changes.”
Lets be a little more specific – Nobody voted for this in Scotland either !

Tom Scott
Tom Scott
17 days ago
Reply to  Tom Lewis

Absolutely. So where are the Scottish voices?

We constantly hear from the SNP about how we are trying to thwart the rights of the Scottish people, without ever asking the Scottish people their views.

Tom Lewis
Tom Lewis
17 days ago
Reply to  Tom Scott

I’m rarely known for my gay abandon, but I’m bug-ered if I know !

Alphonse Pfarti
Alphonse Pfarti
16 days ago
Reply to  Tom Scott

There has been a lot of resistance and protest in Scotland, paradoxically from women’s rights organisations whose members had most likely voted SNP or Green.

Johan Kruger
Johan Kruger
16 days ago

Paradoxically, the only political party concerned with defending actual women’s rights are the Conservatives.

Arkadian X
Arkadian X
17 days ago
Reply to  Tom Lewis

Yes and not, but more not than yes.
The SNP were well known for their proclivities before the elections, and so were the greens. Nobody can claim that this came out of nowhere.
Alba spelt out their opposition to this bill, but still got nowhere.
Also, if there was an election tomorrow the SNP would still win hands down.
I think “wheesht for indy” sums it up quite well.
What I don’t understand is why labour got captured too. That makes NO sense whatsoever, especially considering that their amendments got voted down.

Last edited 17 days ago by Andrea X
Alphonse Pfarti
Alphonse Pfarti
16 days ago
Reply to  Arkadian X

My take on it is that Sarwar is trying to win back the lefty-liberal middle class and yoof vote from the SNP and Greens.

Arkadian X
Arkadian X
16 days ago

That would be very shortsighted because there are few of them and, being mostly young, they are unlikely to vote in droves.
However, it has made impossible for me (who do vote!) to vote for them.
I would very gladly not vote again for the Tories, but can I really vote for *this* Labour party? I couldn’t, but maybe that’s just me.

Last edited 16 days ago by Andrea X
Lauchlan McEwan
Lauchlan McEwan
14 days ago
Reply to  Tom Lewis

The majority of MSPs from all parties voted for it

Alphonse Pfarti
Alphonse Pfarti
13 days ago

Apart from the Conservatives. The only party to allow a free vote and not whip their MSPs.

Last edited 13 days ago by Al M
Tom Lewis
Tom Lewis
17 days ago

“This will be available to anyone resident in Scotland or who was born in Scotland and now lives elsewhere. “

Funny, that ! When it came to the independence referendum, in 2014 (and maybe a future referendum, irrespective of where people came from), only people ‘living’ in Scotland counted. NOW, ‘Queen’ Nicola ‘appears’ to be claiming dominion over ‘ALL’ Scots, wherever they may be found. How much more evidence do we need, that she serves ‘only’ her own narrow self interests, and that even the cause for which she pretends to champion and fight for is a ‘poor, abused, far distant second !

AC Harper
AC Harper
16 days ago
Reply to  Tom Lewis

When you are running a political machine the voters are just the feedstock.

Peter B
Peter B
16 days ago
Reply to  Tom Lewis

One might imagine then that if it applies to Scottish people outside Scotland that the Scottish government would equally insist that Scots living outside Scotland should also be able to vote in independence referendums. Only they don’t.
No consistency.
Quite apart from it obviously being illegal to pass extra-territorial legislation for which the devolved Scottish parliament has no remit or authority. Do these clueless clowns have any idea what they’re doing ?

R Wright
R Wright
17 days ago

Tony Blair’s ticking timebomb of a policy finally rears its ugly head. What a disaster that man was.

CHARLES STANHOPE
CHARLES STANHOPE
17 days ago
Reply to  R Wright

Still is.

Glyn R
Glyn R
16 days ago
Reply to  R Wright

A disaster for the citizens of the UK but I’m sure Blair believes he achieved all that he set out to do.

Diane Tasker
Diane Tasker
15 days ago
Reply to  R Wright

…..an £ enriched disaster!

Andy Iddon
Andy Iddon
12 days ago
Reply to  R Wright

Yet the appalling legislature introduced under Blair and Brown is all still statute and unrepealed. This after 13 years of Tory / coalition rule. What does that say about what the executive really want? In particular the HRA and Equalities Act

Last edited 12 days ago by andrew.iddon
Helen Saxby
Helen Saxby
17 days ago

Arguments were made in submissions to the 2015 trans inquiry, in submissions to the 2018 GRA consultation, and in many other debates over the years, on exactly this point. The lobbying for trans ‘rights’ has never thought to consider the impact on Equality Act protections for other groups, and shamefully the politicians have not listened to the (mostly) women sounding the alarm. Now, here we are. Quite a lot of women will be rolling their eyes watching this story play out.

Pat Hughes
Pat Hughes
15 days ago
Reply to  Helen Saxby

It affects a lot more than women’s rights. Reducing age 18 to 16. Even the UN recognises a child to be under 18 years of age. Three months living as opposite sex from 2 years. No clinical diagnosis of gender dysphoria and self identification.

Jim Jam
Jim Jam
17 days ago

This is perhaps the only open goal that Sunak has to score. Public opinion is behind him he should be taking a firm stand. This would also weaken Starmer – and, by asserting the near unassailable arguments against this bill – probably discredit and suck power from Sturgeon.

The apparent hestitancy though – like in many other areas – seems unfortunately to point to forces at work behind the scenes. An invisible hand that persistently works against the interests and opinions of the citizenry.

Ethniciodo Rodenydo
Ethniciodo Rodenydo
16 days ago
Reply to  Jim Jam

An invisible hand that persistently works against the interests and opinions of the citizenry.
Can’t think of any other explanation

Ian Stewart
Ian Stewart
16 days ago

Anyone interested in an analysis of the relative risk of transgender women being sex offenders compared to women and men should read this:
https://wingsoverscotland.com/the-rorschach-test/#more-134176
Here is an extract on the analysis for England and Wales
:“So we can match those numbers up to the now-known numbers of transwomen.

11,660 men serving time for sex offences out of 29.5m = 1 in 2530 men

103 women serving the same time out of 30.4 million = 1 in 295,000 women

92transwomen serving the same time out of 48,000 = 1 in 522 transwomen

That suggests transwomen are five times more likely than other men, and 566 times more likely than women, to commit sexual offences.

That’s not a sample, not a poll, not a survey, not a representative focus group. It’s a hard count.“

Scary stuff.

Last edited 16 days ago by Ian Stewart
Johan Kruger
Johan Kruger
16 days ago
Reply to  Ian Stewart

What proportion of those delinquent trans-women still have a short-arm? It seems to me that a minimum requirement is that Trans-Women don’t have a short-arm & ammo bag.

Janny Lee
Janny Lee
12 days ago
Reply to  Johan Kruger

Couldn’t put it better!

Julian Farrows
Julian Farrows
16 days ago

This transgender movement has a lot of money and powerful interests behind it. I wonder how much pressure Rishi Sunak is under to recognize this gender recognition bill. No-one asked for this, yet the way it’s being inflicted on people is as though a new totalitarian regime has been set up.

Jeremy Bray
Jeremy Bray
17 days ago

If Sturgeon intends the Bill to affect the way that those holding Scottish issued GR certificates are treated elsewhere than Scotland then of course Sunak should intervene as Sturgeon has no mandate to effect changes in the UK even assuming that she has a mandate in Scotland and how could it not given that birth certificates will be altered.

This is at least an issue where he will have the overwhelming support of the population not only of England but probably Scotland for all Sturgeon’s talk of her mandate.

Tom Scott
Tom Scott
17 days ago
Reply to  Jeremy Bray

Very likely. Though we will have to put up with SNPs in Parliament bleating on incessantly bleating about it. Hey ho.

Nancy G
Nancy G
16 days ago

Why isn’t Sturgeon pushing for men who want to be women to be fast-tracked to ‘gender-confirming’ surgery?

Lauchlan McEwan
Lauchlan McEwan
14 days ago
Reply to  Nancy G

It doesn’t – read the summary of the bill fgs!

CHARLES STANHOPE
CHARLES STANHOPE
17 days ago

Beware, strict CENSORSHIP is being applied to this essay!

Tom Lewis
Tom Lewis
17 days ago

So I’ve noticed ! Evidently quoting the author, with a pithy, one liner reply, is verboten!

Arkadian X
Arkadian X
17 days ago

Huh?

CHARLES STANHOPE
CHARLES STANHOPE
17 days ago

Come on Sunak it is quite clear what you have to do It’s even in the National Anthem:-
Lord, grant that Marshal Wade
May by thy mighty aid
Victory bring;
May he sedition hush,
and like a torrent rush
Rebellious Scots* to crush!
God save the King!

(* Perhaps that should be Scotch.)

Tom Lewis
Tom Lewis
17 days ago

General Wade’s most significant, although, it seems, largely ignored contribution to British history was the building of roads in Scotland (unglamorous, I know !). It profoundly changed Scottish history, and subsequently, British history. They, ‘finally’ (apart from that ‘small’ incident in ‘46’) ‘tamed’ the wild Highlands for both the benefit of the British government, but also for the Scots, who never (ever) had

CHARLES STANHOPE
CHARLES STANHOPE
17 days ago
Reply to  Tom Lewis

“If you’d seen these roads before they were made, you would hold up your hands and bless Marshal Wade”.

Tom Lewis
Tom Lewis
17 days ago

I will defer to your ‘superior’ knowledge. Long’ish in the tooth that I am, unfortunately I wasn’t around in the 1670’s, so I will take your word for it. If they were anything like they were in the 1970’s though (and to which some appear to be returning), then yes, I quite agree (Wades (and others) bridges are still good though, and pretty to boot).
Of course, it’s one step up from Madagascar, according to Flashman, where they would only cut roads out of the jungle as and when the Queen required to use them (and, for all I know, might still be the case)

Ian Stewart
Ian Stewart
16 days ago

On the other hand…….let this Scottish gender recognition law run its course across the U.K., creating issues everywhere in female changing spaces and safeguarding of children – admittedly risking some child abuse arising as the perverts exploit it – with the consequence that the trans activist movement is destroyed much faster than the current approach of ‘yes we need to consider the rights of 0.2% of the population ALL of the time’, which permits child abuse being institutionally enshrined by the likes of Stonewall for a number of years.

Last edited 16 days ago by Ian Stewart
AC Harper
AC Harper
17 days ago

Are there not an oversupply of SNP Westminster SNPs to promote such changes (if deemed worthy) for the whole of the UK?
So perhaps this is just another way of Nicola Sturgeon trying to bend the rules of devolved powers to suit her desire to hold another Independence Referendum (whenever she feels she might win)?

Ken Maclaren
Ken Maclaren
16 days ago

He has the justification, but does he have ‘the b***s’?