Trans rights and the constitutional ‘nuclear option’

Who knows what was in Nicola Sturgeon’s mind when she railroaded through the Scottish Parliament a bill allowing 16-year-olds to change their gender before the law. Maybe she decided after a period of sincere deliberation. Maybe it reflected a long-standing belief, or – just possibly – it was the result of successful lobbying by an influential and vocal constituency.

Or, of course, she could have seized on the hugely controversial issue of trans rights as a way of at once demonstrating her own progressive credentials and an opportunity to pick a new quarrel with Westminster. If so, she has been spectacularly successful – and not for the first time.

Over the years, she has shown a more acute sense of politics –the big picture and small –than almost anyone in political office in the UK today. Whether or not the innocently named Gender Recognition Reform Bill was a deliberate provocation, Scotland’s first minister must be gratified by the frenzy she has once again stirred up in London. Opposing Westminster is a time-honoured way for the Scottish National Party to win points with its supporters, and it did not take long for the UK government, in the shape of the Scottish secretary, to announce that it was blocking the law.

The only surprise, perhaps, was that the UK government had invoked Section 35 of the Scotland Act, resorting for the first time to a provision known as the “nuclear option” rather than initiating a court challenge. Sturgeon denounced the UK’s veto as “a full-frontal attack on the democratically elected Scottish parliament”. But there are two important questions here that need to be separated: firstly the issue of transgender people’s rights, including the right to self-identify in a new gender and at what age. The second is the quite different constitutional question that is now in play about devolved powers.

Mixing the two is one reason for the consternation, even indignation, in Westminster; with a subtext of “how dare she march Scotland into a conflict with the UK, and on such a sensitive issue to boot?” To which the only reasonable response is to ask everyone to calm down.

Countries that are established federations, such as the United States and Germany, take such challenges to central authority in their stride. Even in the best-regulated examples of devolved power, disputes are bound to arise periodically about where the power of the central government stops and that of the devolved state or region begins. These tussles can be bitter, as seen with the new revival of the Roe v Wade abortion debate in the United States. But there is a place where they are resolved: the Supreme Court in the United States and designated constitutional courts elsewhere.  

Nor is the UK without such an institution. Increasingly, the Supreme Court is being called upon to arbitrate in matters that relate to the constitution – a role that, for better or worse, it has exercised as a result of all the parliamentary to-ing and fro-ing over Brexit. From its ruling that parliament had to vote on starting the Brexit process to the rebuttal of Boris Johnson’s attempt to prorogue parliament, the Supreme Court was the ultimate arbiter. The court has also pronounced on previous disputes between Westminster and Holyrood, most recently judging that Scotland had no right to hold a new independence referendum without London’s consent.

The difference between the UK and, say, Germany or the US is that such cases are regarded as part of the regular functioning of the state and have no reason whatsoever for constitutional panic. Indeed, deciding such questions is what their highest courts are for. We need to get used to it.

There is another big difference, of course, between our system and those of most other federations: they have written constitutions that, for the most part, define the scope of central power. Disputes arise where the question is new or the constitution may be outdated or not entirely clear. This is not so in the UK. We have no single document that the Supreme Court can refer to as the yardstick of what is constitutional or not. It has to base its judgments on a whole body of law, on precedent, and – in relation to Scotland – on the 1998 Scotland Act on devolved power, as well as its subsequent additions.

Whether the UK should move to adopt a written constitution is a reasonable question that deserves an answer. Personally, I think we should. Our cobbled-together body of laws was sorely tested in the run-up to Brexit and, depending on your view, the Supreme Court may or may not have proved itself equal to the task.

If the UK were to move to a written constitution, however, one defect of the current situation would swiftly become even more apparent – and it is key to the question in hand: whether Scotland has the power to legislate its own course on a gender issue. Devolution, as it now works within the UK, is a mess. It is a complete dog’s dinner, with different powers devolved to the different nations at different times. There are no standard rules governing the powers enjoyed by England, Scotland, Wales, and Northern Ireland in relation to the UK government and the Westminster parliament.

The position of England remains lamentably vague, and much is not defined at all. There are many who believe that this is absolutely fine, indeed that it is a positive feature of both the UK’s non-constitution and its form of devolution. Messy equals flexible, equals tailored to individual conditions, equals good. The Covid pandemic illustrated both the plusses and the minuses of these arrangements. The devolved nations were able to set and enforce their own Covid rules – that arguably matched their different circumstances, while raising the profile – and accountability of their leaders. But a pandemic by definition crosses borders and arguably requires standard and centralised rules.

If the central government lacks the power to do that, what price does the state pay? It transpires – to the surprise of some, perhaps, including me – that “gender recognition” is a devolved matter, even though equality laws are the preserve of central government and apply across the UK. The current dispute between Westminster and Scotland about transgender rights is a product of this mismatch.

But should gender questions, and specifically gender recognition, really be devolved matters? As the law currently stands in the UK, anyone who wishes to change legal sex must be over 18, have a medical diagnosis of gender dysphoria, and have lived in their new gender for two years. The new Scottish law would, in theory, make it possible for a 16-year-old male living elsewhere in the UK to nip to Scotland, obtain documentation to the effect that he is legally a woman on the basis of “self-identification” and then exercise that right back in England, Wales or Northern Ireland. In other words, it could open the way to “gender tourism”.

That would hardly be a satisfactory situation, to put it mildly. Even if England and the other devolved nations refused to recognise that person’s new gender, it would leave the UK with different legal definitions in this at once basic and politically sensitive area. It was already hard to understand why Northern Ireland was for so long able to maintain a ban on abortion (which was legalised only in 2019), and same-sex marriage, which became legal the following year, a full six years after the rest of the UK. Now those anomalies have been rectified, at least in law, it would be quite wrong to introduce another. The initial mistake might have been for gender to be designated as a devolved matter, but the need for common definitions and rules in this area across the UK should now be clear.

If Scotland’s first minister wishes to pursue a legal challenge, so be it. In the absence of any standardised UK division of powers or a written constitution, let the Supreme Court decide.