A constitutional clash looms on gender reforms

To set aside sensitive moral questions and competing human rights is the best way to analyse the purely political aspects of the Gender Recognition Reform (Scotland) Bill. It is about to provoke a protracted constitutional wrangle. On balance, it is one that will serve the Scottish National Party best.

Having passed through the Scottish parliament, the bill awaits royal assent. However, the secretary of state for Scotland, Alister Jack, has 28 days to impose in effect a temporary veto on the bill reaching the King. This power, hitherto unused, rests in the foundational document of Scottish devolution, the Scotland Act 1998. Section 35 of the act states: “If a Bill contains provisions – (a) which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or (b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.”

In this case, the “reasonable grounds” refer primarily to the Equality Act 2010. Equality is a matter reserved to Westminster, but matters of personal status, such as gender recognition, are devolved. The UK government cites the potential for the legislation to affect people outside Scotland if those who obtain new rights under it should travel elsewhere in the UK – in short, how it might affect the rights of women in England, Wales and Northern Ireland.

“Lots of people have got concerns” about the impact of the new legislation “on women and children’s safety”, according to Rishi Sunak, who believes it is right for his government to “have a look at it”. He refuses to rule out blocking it, though to do so would inevitably end up with the case being heard in the Supreme Court. UK equalities minister Kemi Badenoch, a social conservative, says she’s concerned about “this bill’s impact on the functioning of the Equality Act, which is designed to protect all UK citizens”.

Politically, this pitches the rights of the Scottish government hard against Westminster, and is the kind of issue that can inflame feelings about national prerogatives regardless of support for the gender reforms themselves. It may strengthen arguments for independence in the long, permanent campaign being run by Nicola Sturgeon. She has declared that the next general election, probably in 2024, will be treated by her and allies as a de facto referendum on independence.

How this plays out is difficult to predict. Many progressive parties, and many people in Scotland, will find it intolerable that a British Tory government that few in Scotland voted for might strike down an important measure agreed democratically, albeit with dissent, by elected representatives of the Scottish people. In due course, as with attempts to hold a new independence referendum, it will be decided by the UK Supreme Court. The SNP will point out that this court convenes in London and is undemocratic; their opponents will point to Scottish representation on the court and its essential political independence.

On the other hand, the SNP is itself quite bitterly divided on the issue of gender reform, and even the wider goal of independence might not be sufficient to persuade dissenters to fight for it. The 86-39 vote on the bill represented the biggest SNP backbench revolt in the party’s 15 years in power at Holyrood.

Some Scots on both sides of the party lines don’t agree with the reforms, and many more won’t regard the issue as so critical that it will affect their vote, certainly in comparison with the issue of independence.

In the end, there will be a fierce heat generated by the intertwined arguments over two emotive issues: trans rights and Scottish rights. In the cold light of the polling place, voters will have many factors to consider.