On Monday (16 January), Scotland Secretary Alister Jack confirmed that he will enact a section 35 order at Westminster tomorrow to prevent the legislation from being sent to King Charles.
Downing Street can stop legislation from Holyrood receiving Royal Assent if they believe it will have – as Jack said in his statement – an “adverse” impact on UK law.
This is the first time in 25 years since devolution that section 35 has been used to block a piece of Holyrood legislation, and is expected to cause a major constitutional row.
While Jack said that trans people who are “going through the process to change their sex deserve our respect, support and understanding,” he said the decision was made “about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters.”
“I have not taken this decision lightly. The Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales. I have concluded, therefore, that this is the necessary and correct course of action,” he said.
“If the Scottish Government chooses to bring an amended Bill back for reconsideration in the Scottish Parliament, I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation.
“I have written today to the First Minister and the Scottish Parliament’s Presiding Officer informing them of my decision.”
The Scottish Parliament passed the Gender Recognition Reform Bill in a “significant” step forward for trans rights in the country on 22 December.
MSPs voted by 86 votes to 39 in favour of allowing transgender people to self-identify, meaning trans people would no longer need to be medically diagnosed with gender dysphoria before obtaining a gender recognition certificate (GRC).
In addition, trans people would no longer need to prove that they’ve lived in their gender identity for two years before gaining recognition, while also dropping the minimum age of applying for the certificate from 18 to 16.
Applicants would also be required to make a statutory declaration that they have lived in their gender for just three months – six months for all 16 and 17-year-olds – and that they intend to permanently live in their gender.
During the final debate, Shona Robison – Cabinet Secretary for Social Justice, Housing and Local Government – said: “Every party in this chamber except one made a clear commitment to the reforms set out in this Bill at the last Scottish election, and at the one before that it was all parties.
Following the passing of the bill, Robison described 22 December as “an historic day for equality in Scotland with the gender recognition reform bill being approved by parliament and by members of all parties”.
She highlighted how the bill will ‘simplify and improve’ the process for trans people to obtain a GRC certificate, calling the previous requirements “intrusive, medicalised and bureaucratic”.
Stonewall, who described the passing of the bill as a “victory for trans and all human rights in Scotland”, said they were “saddened” to hear that the Prime Minister has chosen to block the implementation of the bill.
“This is a piece of legislation that simply seeks to make the process for legally recognising a trans man or trans women’s gender more respectful and straightforward,” they wrote.
“Scotland’s Bill aligns it with leading international practice endorsed by the United Nations and adopted by 30 countries, including Canada, Australia, New Zealand, Ireland and most of the United States of America.
“Trans people make up only 0.5% of our population, and trans men and women who can benefit from the Gender Recognition Reform Bill are only 0.2%.
“Trans people are at high risk of experiencing hate crime. They wait years and years to get a first appointment with healthcare specialists that can support their transition. Trans children are bullied in our schools. Trans people are at high risk of experiencing hate crime. They wait years and years to get a first appointment with healthcare specialists that can support their transition. Trans children are bullied in our schools, trans adults are bullied in their workplaces.
“The UK Government should be focused on developing and implementing a strategy that improves the lives of all LGBTQ+ people, including trans people, not causing them more harm.”
You can read Stonewall’s statement in full here.