On Thursday, the Scottish parliament approved the controversial gender recognition reform bill, which will make it easier for people to change their legal gender and lowers the minimum age for doing so from 18 to 16.
Proponents say the bill will make a lengthy and humiliating process of changing gender much more humane. Critics argue that the changes will erode women’s “sex-based” rights and open up safe spaces for exploitation by predators.
As Holyrood’s presiding officer read out the result, the bill’s supporters in the chamber broke out into applause. The margin of victory of 86 votes to 39 was comfortable and better than anticipated. But Sturgeon’s victory lap was soon cut short by shouts of “shame!” from the public gallery, prompting the sitting to be briefly suspended.
This heated exchange provides a microcosmic picture of the toxic spectacle that has engulfed Scottish society in recent months. It underlined that while Sturgeon may have secured some legislative finality on the gender issue, she is still a long way away from winning the argument.
Indeed, the debate is threatening to get more toxic still as the UK government prepares the ground for a high-profile, deeply controversial intervention.
It is no secret that ministers in Rishi Sunak’s government harbour concerns over the moral implications of the legislation. But within minutes of the bill’s passage on Thursday, secretary of state Alister Jack issued a statement questioning the bill’s very legality.
It was a signal that the debate was stepping up a gear. The statement read:
We share the concerns that many people have regarding certain aspects of this bill, and in particular the safety issues for women and children. We will look closely at that, and also the ramifications for the 2010 Equality Act and other UK-wide legislation, in the coming weeks — up to and including a Section 35 order stopping the bill going for Royal Assent if necessary.
Under the terms of the 1998 Scotland Act, a Section 35 order would prohibit Holyrood’s presiding officer from submitting the bill for Royal Assent, provided the secretary of state has reasonable grounds to believe it would have an adverse effect on matters reserved to Westminster.
Therefore in order to justify the act, Jack will need to prove that the gender recognition reform bill will modify the law relating to the matter of equal opportunities, reserved to Westminster per the 2010 Equality Act. The UK government’s decision hence comes down to a moral judgement over whether the introduction of a gender self-ID system is incompatible with the anti-discrimination rights of biological women. It would essentially re-run the toxic arguments which dominated the proceedings in Holyrood.
On Friday, prime minister Rishi Sunak confirmed that his government would indeed be reviewing the legislation. He affirmed:
Lots of people have got concerns about this new bill in Scotland, about the impact it will have on women’s and children’s safety. So I think it is completely reasonable for the UK government to have a look at it, understand what the consequences are for women and children’s safety in the rest of the UK, and then decide on what the appropriate course of action is.
In his opposition to the bill, Sunak was strategically forging his party’s legal and moral objections. Not only would the bill have an impact on “women and children’s safety” but it would do so “in the rest of the UK”, where Holyrood has no authority. It is an effective Conservative criticism, but it also opens the door for SNP to make their own moral-legal arguments.
Will the SNP now link the advancement of social issues like self-ID to the cause for independence?
Scotland at the crossroads
The independence debate has been at a standstill since the Supreme Court ruled in November that the Scottish government does not have the competency to call a referendum. In the immediate aftermath of the ruling, Nicola Sturgeon insisted that the SNP would proceed with “Plan B” and fight the next election on a single-issue “indy” platform. But in recent weeks, the first minister appears to have been preparing the ground for a climbdown.
On Monday, Sturgeon announced that the SNP will hold a special “democracy” conference in March 2023, where the future of the independence movement will be decided. But it is difficult to view the planned conference as anything other than a futile talking shop; indeed, with the Supreme Court having come down decisively on the side of the UK government, constitutional pathways appear to have been exhausted.
At this difficult juncture for the SNP, an attempt from the UK government to strike down a bill passed lawfully by Holyrood could provide some much-needed political energy.
While the Scottish independence movement is far from united behind the GRR bill, accusations that the UK government is overreaching in its response could spark a powerful nationalist reaction. If there is one thing that unites the SNP, it is the hatred of diktats from the Conservative government.
The SNP will be able to claim that “Westminster is blocking the will of the Scottish parliament”. This stringing criticism in turn feeds the argument that the Scottish parliament cannot exercise real power to enact change, a key SNP line of attack since the Supreme Court case.
Crucially, such a move might also persuade Labour and Liberal Democrat voters, who roundly support the GRR bill, that Scotland needs further constitutional guarantees. In attempting to block the GRR bill, Alister Jack hence risks sparking a powerful sense of collective alienation and institutional vulnerability in Scotland. These feelings necessarily benefit the SNP.
If the UK government does choose to issue a Section 35 order, it creates the opportunity for the SNP to fuse social and national solidarities. The core SNP ideal that Scotland could enact important progressive change if it stepped outwith the institutions of the UK state would be vindicated.
Ultimately, a section 35 order would be destined for the courts, Sturgeon would not pass up another opportunity for judicial review. But whatever the court’s ruling, the result could be a potent socio‐political force in favour of independence.
The UK government is playing a high-stakes game indeed.