How Gender Change Procedures in Scotland Led to a Constitutional Dispute With the Westminster Parliament

Late last year, Scotland’s parliament passed controversial legislation that makes it easier for people to change their gender, which heralds a constitutional battle with the UK parliament and government, according to British media.

Secretary of State for Scotland, Alister Jack, pledged to prevent this bill from entering into force, while the Scottish Prime Minister, Nicola Sturgeon, pledged to confront any attempt that would obstruct this project, which she had proposed 6 years ago.

However, this bill is still facing delays, as the British government has said that it may not win royal assent, as it is one of the most controversial legislation in Holyrood since the transfer of power, despite it being passed after support by many in the Scottish National Party, the Greens, Labour, and the Liberal Democrats.

 

Controversial Bill

After two long days of debating, on December 22, 2012, the Scottish Parliament passed the controversial Gender Recognition Reform Bill by 86 votes to 39, according to the British newspaper Sky News.

The law lowers the minimum age for people who want to apply to change their gender in Scotland from 18 to 16, and cuts the time it takes someone to live in their acquired gender from two years to three months; in addition, a medical diagnosis of gender dysphoria will not be required in order to obtain a Gender Recognition Certificate.

In conjunction with the debates over the bill, hundreds of people took part in demonstrations for and against the bill outside Holyrood, where the final amendments were being drafted.

When Speaker Alison Johnston announced the legislation, dissidents inside Parliament House shouted, “Shame on you!” expressing concerns about the impact of the bill on the safety of women and girls and its failure to protect women’s rights and single-gender spaces.

In November 2022, the UN Special Rapporteur on violence against women and girls, Reem Alsalem, warned that Scottish reforms may allow violent males to abuse the system.

However, the Scottish government insisted the legislation would not affect the Equality Act, which allows transgender people to be excluded from single-gender spaces such as changing rooms and shelters.

Meanwhile, Nicola Sturgeon has been a staunch supporter of the bill. Not all SNP members have toed the line, as seven members of the ruling party voted against it, two others abstained from voting in the first stage, and Minister Ash Regan was forced to resign due to her objection.

In turn, the SNP deputy leader in Westminster, Mhairi Black, welcomed the passing of the bill on Twitter, posting the word “Finally,” along with a trans flag emoji.

 

Constitutional Dispute

However, the passage of the bill in the Holyrood Parliament does not signify its inclusion in the Register of Laws.

Alister Jack said he could challenge the bill in the High Court or take legal action to prevent it from being enforced if it had implications for the UK, which was supported by British Equalities Minister Kemi Badenoch.

According to the Guardian, British Prime Minister Rishi Sunak has threatened to block a gender-change procedure bill that would make Scotland the first to introduce a system of self-identification for people who wish to change their gender in the UK.

In a major constitutional escalation, Westminster has made it clear that it will consider issuing a firm resolution to prevent the bill from obtaining royal assent, a move that would anger nationalists and supporters of the changes.

The British government is also considering refusing to recognize certificates issued under the new Scottish system, which could cause problems for people who want to move to other parts of the UK with them.

A spokesman for the British Prime Minister said: “We have not taken decisions on any possible action at this time. As the Equality and Human Rights Commission and the UN Special Rapporteur have made clear, the Scottish government’s proposals currently raise a number of obvious concerns.”

Minister Badenoch has written to the Scottish government to express her concerns about the legislation and has offered to meet with Scottish ministers to discuss it.

In response, Scottish ministers said they would be happy to meet their counterparts in the UK to discuss their concerns, and officials in Edinburgh said they had attempted talks with London officials in October 2022 but without any response.

The SNP-led government believes the bill includes powers only granted in Edinburgh, so the UK government would have no grounds to lodge a legal challenge.

Despite this, the Scottish government has vowed to vigorously contest any intervention against the bill. First Minister Nicola Sturgeon described Sunak and his government as enemies of democracy.

In another context, the Guardian revealed that Dougie Smith, a former adviser to Boris Johnson, is behind the UK government’s response to new gender reform laws and is working on weaponizing the case for transgender rights ahead of the upcoming elections.

Smith is said to have been behind Johnson’s strategy of fomenting divisions over racial, heritage, and cultural issues by allying the Conservative Party with constituency voters in the Midlands and North of England that have historically supported Labour.

Some Westminster MPs believe the UK government is only taking a stand on the Scottish bill and would not raise a legal battle with it, but one insider said: “It is a high-stakes game, and if the Sunak government were to object legally, it would have provided the greatest justification for the independence of Scotland that the SNP seeks.”

On his part, a British government source told the BBC that they had concerns that people from other parts of the UK might move to Scotland to change their gender, pointing out that Scottish ministers want to portray Scotland as a haven of totalitarianism compared to the loathsome Westminster.

The source described the Scottish legislation as a testing scenario for how a bill passed by the Holyrood parliament could undermine the powers of the Westminster parliament, adding that there was real concern about the impact of the legislation in the rest of the UK, and a new legal battle.

In turn, London-based lawyer, Bassam Tablieh, explained in a statement to Al-Estiklal that “the issue of sex change is a matter of disagreement among many spectra of the British people, and it is also a matter of disagreement between the countries of the Kingdom.”

“There are also many obstacles that could prevent approval of the Scottish bill, given that such issues have legal moral roots, despite the presence of new currents trying to impose their agenda on this matter,” he said.

“The UK government will be careful not to pass the Scottish bill and not to anger the Scottish people, so they don’t pressure them again on their independence,” he added.

Lawyer Tablieh also pointed out that “there are a lot of currents and parties that started putting LGBT signs and incitement on this issue to pass their political agenda, and thus put pressure on the UK government from this framework, especially under various names such as social freedom.”

 

Seismic Shift

In just a few decades, attitudes towards members of the LGBT community have changed dramatically in Scotland.

In the 1980s, the atmosphere was one of general homophobia, hostility, and hatred, and LGBT people could either remain anonymous, move to England, or commit suicide.

By the early 2000s, attitudes towards LGBT people were becoming increasingly more accepting.

In 2004, legislation was passed allowing transgender people to change their legal gender.

In 2005, civil partnerships became legal for same-gender couples, and the following year same-gender couples were able to adopt.

In 2014 when the Commonwealth Games were being shown around the world, Scotland announced its newfound openness with a gay kiss as part of the opening ceremony.

That year ended with same-gender marriage becoming legal in Scotland and the leader of the Scottish Conservative Party, lesbian Ruth Davidson, enthusiastically supporting the move.

The media described the change in social acceptance as a seismic shift, as the social acceptance of same-gender relationships and members of the LGBT community increased dramatically in that period, despite the strong opposition of the main church organizations to this phenomenon.

A 2014 poll published by Scottish Social Attitudes found that 68% of Scots supported same-gender marriage, while 17% opposed it.

In 2015, a study ranked Scotland as the best country in Europe for the LGBT community.

In 2016, the majority of Scotland’s major political parties were led by openly LGBT people: the Scottish Conservatives by Ruth Davidson, the Scottish Labour Party by Kezia Dugdale, the Scottish Green Party by Patrick Harvie, and the Scottish branch of the UK Independence Party by David Coburn.

In November 2018, Scotland became the first country in the world to require students of all educational levels to study homosexuality issues in their curricula.

 

Referendum on Independence

It is noteworthy that the Scottish government had announced that it intends, during the month of March, to hold a discussion about its future strategy toward independence from the UK.

British media quoted Scottish Prime Minister Nicola Sturgeon as saying that the SNP intends to discuss this at a special conference on March 19, 2023, in which it will determine the path that the government will take toward independence.

The British Supreme Court ruled on November 23, 2022, that Scotland cannot hold a referendum without the consent of the British Parliament, which means freezing the Scottish government’s plans to hold a second referendum on independence on October 19, 2023.

It is noteworthy that the Scots had chosen to remain in the UK by 55% during a referendum organized in 2014.

However, the SNP ran in the parliamentary elections in 2021 on the promise of organizing a legal referendum after the Covid-19 crisis subsided, arguing that Brexit took place against the will of the Scots who want to remain in the EU, and for this purpose, they must separate from the UK.

In 2016, Scotland voted to remain in the EU, but it was ignored at the time, sparking outrage and making Scottish independence in Europe an even more pressing issue.

The latest opinion polls indicated that the Scots were divided on the intentions of voting between supporters of independence from the UK and those opposed to it.