‘I don’t think that trans people have destroyed the union. But I do think we have put a stake in the heart of unionism’
Last December, the Scottish parliament passed a reform to the Gender Recognition Act, which would make it easier for trans people to change the “legal sex” of their birth certificate. The SNP had a clear mandate to do this, having won a majority at the last election with GRA reform included in its manifesto. As much as the anti-trans movement attempted to whip up a frenzy about the bill, it wasn’t really ‘controversial’ at all – it passed with a majority of 88 for and 33 against. Its opponents lost, fair and square.
This should have been a story about Holyrood passing a modestly progressive piece of legislation that would make life easier for trans people, and bring Scotland in line with international standards. But unfortunately, that wasn’t the end of it. In a shocking move, Rishi Sunak is pressing ahead with plans to overrule the Scottish government and block the GRA reform, using a mechanism known as ‘Section 35’. The motion passed in Westminster today (January 18), with just 11 Labour MPs voting against it (the rest abstained.)
This has never happened before, in the 24 years that Scotland has had a devolved parliament. What would possess the Tories to take such a drastic measure? What does it mean for the trans community in Scotland and elsewhere? We spoke to some experts to find out.
HOW ARE THE TORIES JUSTIFYING THIS?
Under devolution (the system where limited powers are delegated to Scotland), there is a distinction between ‘devolved’ and ‘reserved’ matters. Put simply, ‘devolved’ matters are the areas of policy which fall under the Scottish government’s jurisdiction. It is unable to legislate on ‘reserved’ matters, which relate to the UK as a whole.
Gender recognition is a ‘devolved’ matter, so it’s clear that the Scottish government has the power to legislate on it – even the UK government isn’t claiming otherwise. Instead, it’s arguing that the GRA reform will have an adverse effect on the Equality Act, a ‘reserved’ law which makes it illegal to discriminate against people with protected characteristics – these include sex, race, disability, and gender reassignment (a term which effectively applies to any trans person, regardless of where they are in their transition process.)
According to Josie Giles, a Scottish writer and the co-author of an academic text about gender equality law, the case against GRA reform is essentially that it will make it easier for a trans woman (and people are mostly talking about trans woman) to obtain a gender recognition certificate and therefore harder to exclude from single-sex spaces. Alister Jack, the Secretary of State for Scotland, made this explicit yesterday when he suggested that the GRA bill threatens “the operation of single-sex clubs, associations and schools, and protections such as equal pay”. While there are other details in the government’s reasoning, this is the central thrust of the argument.
But this reasoning is deeply flawed. In practical terms, the GRA reform has nothing to do with the Equalities Act, nor does it prevent trans women from being excluded from single-sex spaces. “As it stands, you can’t legally discriminate against trans people and you can’t discriminate against women. But the Equality Act does allow for exceptions to this rule, and one of those exceptions is what allows for single-sex spaces,” says Giles. For example, any single-sex space is technically ‘discriminating’ against men, but this is allowed on the basis of being a ‘proportionate means of achieving a legitimate aim.’
Similarly, the Equality Act already has an exception for discrimination on the basis of gender reassignment, which says that you can discriminate against trans people as long as you’re meeting the same criteria. Although it hasn’t been tested in court, this exception means that it’s currently possible for a women's refuge, for instance, to exclude trans women. For better or worse, the GRA reform doesn’t affect this.
If you are a trans woman with a gender recognition certificate, you are legally a woman – this has been tested in court. Opponents of GRA reform argue that the bill would make it harder to exclude trans women on the basis of being “men”. They would instead have to be excluded on the basis of being trans, which would, according to opponents of the reform, be more difficult. “I think that is thin soup. I don't think it's a good legal argument, but it's the argument they’re making,” says Giles. Ultimately, the GRA reform is not doing anything close to what its detractors are claiming. It’s simply not that far-reaching a piece of legislation.
WHY ARE THE TORIES ACTUALLY DOING THIS?
It would be naive to take the Tories’ professed motives at face value – who could believe that a party that has spent the last decade slashing funding for rape crisis centres and domestic violence services really cares about women’s safety?
According to Finlay MacFarlane, an SNP councillor who campaigned for the GRA reform, the explanation is simple. “I think it's both an opportunity to clobber the Scottish Parliament and an opportunity to clobber trans people in equal measure,” he says. “Right-wing parties always rely on an ‘other’ to distract from their domestic record and to win elections. Rishi Sunak is in a shaky position where he can't avoid an election forever, and the polls are showing that the Tories are going to be completely wiped out. Therefore, he’s scrambling around to find an “other” to blame.”
While blocking the GRA reform seems like an inexplicably reckless thing to do, there could be some political benefits for the Tories, not least because it will force Keir Starmer into an uncomfortable position. “They know this is a wedge issue for the Labour Party that will work in both Scotland and England. If they can get Keir Starmer to come out on either side of it, he will risk losing support” Rory Scothorne, a political commentator and historian based in Edinburgh, tells Dazed. “It also wedges the Scottish Labour Party, because it's such a polarising issue in Scotland. The Tories can use it to push both Unionist voters and opponents of GRA reform towards their party.” If this is an anti-Starmer scheme, it’s already paying off: by publicly criticizing the GRA reform, Starmer has thrown many of his Scottish colleagues - the majority of whom voted for the bill - under the bus.
While some people have interpreted the government’s intervention as an attempt to undermine Scotland, Giles believes that Sunak’s motivation is more straightforward. “Personally, I don't believe that is a clever attack on Scottish power,” she says, pointing to the fact that Westminster doesn't even need to do this: it already won a significant victory against the SNP in the Supreme Court last year, when it was ruled that Scotland could not hold an advisory independence referendum. “I don’t think it is anything other than what it is on its face: a deliberate attack on trans people as a way of throwing red meat to the right Tory base and prosecuting a culture war.”
“I don't think that trans people have destroyed the union. But I do think we have put a stake in the heart of unionism”
IS THIS THE END OF THE UNITED KINGDOM?
Since the measure was first announced, I’ve seen lots of trans people joke about bringing on the destruction of the United Kingdom – every cloud! For the most part, this seems tongue-in-cheek - a kind of gallows humour in the face of a horrible situation - but it does gesture towards a serious point: the fact that Westminster is meddling in Scottish affairs so shamelessly seems certain to boost support for independence. How far will this actually go?
“I don't think that trans people have destroyed the union. But I do think we have put a stake in the heart of unionism,” says Giles. “The Tory party is showing unionists that they're willing to sacrifice the preservation of the Union for short-term political gain.” Devolution can be understood as part of the fabric which holds the UK together, a compromise position designed to stave off the threat of Scottish independence. Tossing it aside over such a minor piece of law, Giles suspects, will only strengthen the SNP’s hand.
“We are experiencing the limitations of devolution,” says Scothorne. “Devolution is not a federal system; it is a system of hierarchy where the Scottish Parliament is essentially permitted to exist by Westminster. When devolution encroaches on Westminster’s ability to do whatever it wants, Westminster comes first and Scotland comes second. This is a minority nation essentially being told what to do by a majority nation.” Rishi Sunak could not have illustrated this dynamic more clearly.
The problem is that, regardless of how much pro-independence support this situation creates, there isn’t a clear path forwards for the movement. “We asked Westminster for a referendum and they said no,” says Giles. “We asked the Supreme Court if we can do an advisory referendum, and they said no. The SNP have said that the next general election is a de facto referendum, but that has no legal standing – it's only a PR move. And Westminster can continue to just say no.”
“If there’s anything that transition taught me, it’s the extraordinary power and resilience of trans people, our ability to look after each other and stand up for ourselves”
WHAT DOES THIS MEAN FOR TRANS PEOPLE IN SCOTLAND AND THE REST OF THE UK?
Without a doubt, Sunak’s interference will have a significant impact on the relationship between Scotland and England – if not quite a constitutional crisis, then it’s not far off. But it’s also the latest in a long line of attacks on the trans community, the effects of which go beyond the limited scope of the GRA itself.
“This shows a willingness to continue scapegoating and villainising trans people as part of whatever political campaign the Tory party, and at this point, the British Labour Party, chooses to do,” says Giles. “They are happy to keep throwing trans people to the wolves, and that’s an appalling situation for trans people in this country. We continue to argue that gender recognition certificates are not that big a deal in our lives, so the immediate legal effects for us are not that important. But the effects of us being such a prominent target are very real. It's having an effect on trans people's mental health. It's having an effect on trans people's ability to participate in society. It's fracturing trans people's relationships. It's just awful to wake up every day to find yourself being attacked in the national press.”
It’s a bleak situation, but there is some cause for optimism: everyone I’ve spoken to thinks the SNP has a solid chance of winning its legal challenge. And the British trans community is nothing if not resilient. “We have weathered stuff like this before, and we will weather it again,” says Giles. “If there's anything that transition taught me, it's the extraordinary power and resilience of trans people, our ability to look after each other and stand up for ourselves. Every day, trans people take their power and live their lives in a difficult world. So we'll survive this, we will keep going and we will build the world we want.”