By Nichola Marshall

The Gender Recognition Reform Bill introduced by the Scottish Government to improve the Gender Recognition Certificate (GRC) process has become the latest battle in an increasingly difficult relationship between the Scottish and UK Governments. The Scottish Parliament as we know it today was founded in 1998 through the Scotland Act 1998 after a successful referendum in 1997 which saw Scotland vote to reinstate its own parliament. At this time both the UK and Scottish Parliaments were led by the Labour party which helped to foster a good relationship between the two with several previous Labour MPs becoming MSPs in the new parliament.

After 16 years of SNP power in Holyrood and 13 years of Conservatives in Westminster the relationship between the two governments has never been more contentious. This could be seen in both the recent leadership contests for First Minister and Prime Minister with SNP candidates debating how they will each “stand up to” Westminster and the brief Prime Minister Liz Truss stating during her campaign that she would ignore the “attention seeking” First Minister at the time Nicola Sturgeon. 

The latest battle which will play out very much in the public arena and in court is over the Gender Recognition Reform Bill which was passed in the Scottish Parliament with 86 votes for and 39 against on 22 December 2022. Three weeks later on 17^th January 2023 the UK Government took an unprecedented step to enact Section 35 of the Scotland Act 1998 to block this bill from ascending to Royal Assent and becoming law. This is a monumental moment in the history of the Scottish Government as section 35 has never been sanctioned before. Section 35 allows the Secretary of State, Alister Jack, on behalf of the UK Government to block a Scottish bill being passed as law if it is deemed to impact UK laws in reserved areas.

The Gender Recognition Reform Bill will update the current process to gain a Gender Recognition Certificate (GRC) which is currently outlined in the UK Gender Recognition Act 2004 only for Scotland. The plan to reform this bill was first initiated in 2016 and has been one of the most debated and consulted bills that has been passed by the Scottish Government with 6 years of consultations and several women’s and LGBTQ+ organisations support. The main purpose is to streamline and improve the process for the trans community to receive legal recognition of their gender and remove current barriers.

The GRC process can be overly bureaucratic, costly, invasive and difficult with the need for a diagnosis of gender dysphoria linking it to mental health illnesses. The World Health Organisation (WHO) in 2019 removed gender related health from their list of ‘Mental and Behavioral Disorders’ which is an important step to differentiate gender identity from mental health issues which this removal of a diagnosis and medical reports reflects in this bill.

The four key changes the reform bill will update are:

1. Applications will be reviewed by the Registrar General for Scotland rather than the UK Gender Recognition Panel.
    
2. The minimum age for applicants will be reduced from 18 to 16 years old.
    
3. The requirement for two medical reports from two different medical professionals and a diagnosis of Gender Dysphoria will be removed.
    
4. The time lived in the gender will be reduced from 2 years to 3 months.

Despite having majority across party support in the Scottish Government it has been a controversial bill both politically and in the media with protests and counter-protests outside Holyrood. The MSP Ash Reagan stood down from her ministerial post for example in opposition to the bill and later ran in the leadership contest. Two of the three candidates, Ash Reagan and Kate Forbes, both stated that they would not challenge the UK Government’s decision to block the bill in court while Hamza Yousaf supported it. The bill has been at the forefront of public debate in the UK with the trans community continually forced into the center of a global divisive cultural discussion.

The UK Government has given three core reasons for blocking the bill, first having two different GRC regimes within in the UK would be unmanageable, secondly that it raises concerns of safeguards for women and girls such as fraudulent claims and lastly that it will impact the Equality Act 2010 on issues such as equal pay and single sex spaces which is a reserved issue. Nicola Sturgeon called Westminster’s decision to block the bill a “full-frontal attack” on the Scottish Government. John Lamont MP stated on Question Time in the first pubic face-off between an SNP MSP and Conservative MP since the blocking of the bill that “the Scottish Government needs to go away and come forward with another bill”.

There are statements that the UK Government are willing to work with the Scottish Government on changing the bill but given the tense relationship, contradictions from their own MPs publicly and the Scottish Government claiming the exact opposite, even if they get around the table how true is it that they can work together on anything? Who will suffer if they don’t?

First Minister Hamza Yousaf and the Scottish Government have announced that they will challenge the section 35 decision in court. Which is the second time in less than 12 months the Scottish and UK Governments will fight it out in court, the last was over the Scottish Governments ability to hold an Independence Referendum without the UK Government’s consent with the judge’s ruling in the UK’s favor. Both governments agree that Section 35 should be a last resort, has this been an consequence of the increasing tensions?

What does this mean for future of UK democracy?

Whoever wins the court case what societal damage will be left in it’s wake?

When a marginalized group is used as political cannon fodder between two governments who really suffers?

Unfortunately time will tell.

About the author:

Nichola Marshall previously completed a Business Undergraduate degree and worked in Investment Banking for 12 years and decided to take a completely new direction. She’s just completed A111 and DD103 as part of an Undergraduate History and Politics degree and is moving on to A225 and DD211 in October as part of her second year and hopes to go further in academia.