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LONDON — Welcome to the latest battleground for Scottish independence: transgender rights.
The Scottish Government wants to make legal sex change easier. The Conservative administration at Westminster says it is massively overstepping its powers. The two sides now face off in the courtroom, with a three-day hearing beginning Tuesday morning.
It is a conflict that unites two burning political issues: gender identity and Scotland’s right to make its own laws.
And the result could have major consequences for the embattled Scottish National Party (SNP), which is reeling from a police investigation into its finances. Here’s what you need to know.
When did all this start?
The road to the courtroom was long.
Currently, anyone over the age of 18 in the UK who wishes to legally change their gender must apply to a Gender Recognition Committee – a tribunal made up of legal or health professionals – and submit a medical diagnosis of gender dysphoria, difficult to obtain.
The SNP-led Scottish government, which has warned that trans people are “among the most stigmatized in our society”, wants to apply a different system north of the border.
It first consulted on reforming gender equality laws in 2017, and again in 2019. After the 2021 Scottish Parliament elections – which saw the SNP remain in government but rely on the Scottish Greens left – he redoubled his efforts and introduced gender recognition reform last year. Invoice.
Scotland’s proposed reforms would remove the need for a medical diagnosis of gender dysphoria. They would allow people to apply for a gender recognition certificate provided they have lived as the gender they identify with for three months, instead of the current minimum of two years. Similar reforms have been introduced in 11 European countries.
Under the plans, 16- and 17-year-olds would also be able to apply to legally change their gender, but after a longer period of at least six months living as the gender they identify with.
And when did the trouble start?
Once famous for its iron internal discipline, divisions within the SNP began to become evident late last year. The party’s plan for gender equality became a key issue for some of the most vocal critics of then-first minister Nicola Sturgeon. They either directly disagreed with the reforms or claimed that they distracted from the party’s ultimate goal: achieving Scottish independence.
Activists – increasingly organizing against self-identification – fear the reforms will negatively impact the rights afforded to women by law, including access to women-only spaces and services .
This position was summed up by SNP MP Ash Regan, who said the legislation “could have negative implications for the safety and dignity of women and girls” when passed by the Scottish Parliament. She left a ministerial post in the Sturgeon government to vote against the bill.
For her part, Sturgeon argued that trans rights and women’s rights need not come into conflict, while pro-reform campaigners said the current process for obtaining a gender recognition certificate is dehumanizing and difficult. The vast majority of trans people in the UK live without legally changing their gender, which can present difficulties in situations such as marriage, where a birth certificate is required.
It was in this new context that the SNP experienced the biggest backbench revolt in its history when the bill was first voted on last October. Seven of the party’s 64 MPs voted against the gender recognition reform bill, but it was nonetheless largely passed.
In a final vote in December, the bill again passed easily, despite a slightly larger rebellion from the SNP. Cross-party support from opposition Labor and Liberal Democrat MPs – as well as the Greens – helped ensure the project faced little risk of failure. A number of amendments aimed at diluting some of its objectives were not adopted.
So what does this have to do with the British government at Westminster?
A lot, we estimate.
Over the years, Scotland’s devolved government has gained the power to act in a wide range of areas. But there are many issues on which London continues to take the lead, to the great dismay of independence activists.
And on this point, the government in London denounces the excesses.
Alister Jack, secretary to the UK government in Scotland, said after the bill was passed that Westminster would look at the “concerns of many people” and check whether the bill had “ramifications” for country-wide legislation. United Kingdom. Westminster, Jack warned, would block the law “if necessary.”
Suddenly, political observers were forced to frantically Google Article 35 – a little-known part of the original settlement delegating power from Westminster to Scotland. This allows the UK government to veto devolved legislation which contravenes wider UK law.
Jack didn’t surprise many when in January this year he announced that he had decided to block the act. But, given that this is the first ever use of an Article 35 veto, it is nonetheless an important moment in the 24-year history of Scottish devolution.
Her arguments, set out in a 13-page document drawn up by government lawyers, focused on potential problems arising from the fact that Scotland and the rest of the UK have different gender recognition systems.
The document also highlights the removal of “important safeguards” in the process and the impact on the operation of single-sex spaces.
Jack said the UK government would be happy to consider an amended bill. But the SNP reacted with fury and argued that the UK government was in fact trying to roll back devolution. Before leaving as prime minister, Sturgeon said she would challenge the blockage in court, and her successor Humza Yousaf is sticking to those positions.
Gender equality reforms have become a hot topic in the race to replace Sturgeon, and it’s clear that the SNP’s vast ranks of elected lawmakers are far from united over the bill’s fate.
How will the legal battle unfold?
The reforms are now in the hands of the Court of Session at the Outer House in Edinburgh and a single judge, Shona Haldane. Haldane will be tasked with ruling on the legality of Westminster’s block on the legislation, rather than the detail of the reforms themselves.
During three days of debates starting on Tuesday, the Scottish Government will explain why it believes the UK government was wrong to intervene. The Scottish Government’s chief legal adviser will argue both that his legislation would not have a negative impact on wider UK law and that Westminster has not provided enough evidence to suggest this, and also that the he order under Section 35 was partly made for political rather than legal reasons.
The British government will argue that it provided sufficient evidence and arguments when Jack made the order. They will argue that Jack had reasonable grounds to believe that Edinburgh’s legislation would have adverse effects on British law.
It will likely take a few weeks for Haldane to deliberate on the decision once the proceedings are complete.
Once she rules one way or the other, that may not solve the problem. Either losing side could appeal to the UK Supreme Court, meaning Edinburgh and London could yet face off in the courtroom.