The rag is burning again between London and Edinburgh. And it could once again end up in court.
The British government on Tuesday confirmed its intention to block the Gender Recognition Reform Bill, a bill passed in late December by the Scottish Parliament aimed at facilitating gender change for trans people.
It is the first time that London has vetoed a Scottish law since Scotland had its own Parliament in 1999. This historical precedent does not please the First Minister of Scotland, the independenceist Nicola Sturgeon at all , who has already announced that he wants to take the case to court.
On Tuesday, she strongly denounced the decision, accusing the Conservatives, in power in London, of being without “any good faith” and “hostile” to the Scottish Parliament.
The reform project of Mme Sturgeon aims to accelerate the process of gender change in Scotland.
It lowers the legal age for initiating procedures from 18 to 16, and no longer requires medical advice to obtain a gender recognition certificate allowing it to change its civil status documents. It will suffice to have lived three months (rather than two years) in his acquired gender.
The text has provoked lively social debates in Scotland, where it has been widely criticized by feminist groups.
It also goes too far for the conservative government of Rishi Sunak, which is keen to retain the obligation of medical advice for any gender change – and not before the age of 18 – under a “law on ‘equality’ already existing in the United Kingdom.
Scotland’s Deputy Minister, Alister Jack, assured that the government had not taken this unprecedented decision “lightly”, but argued that Scottish law risked “creating significant complications by creating two schemes for the recognition of gender within the UK.
According to the Scotland Act 1998, governing the division of powers between London and Edinburgh, certain powers, such as education or health, fall to Holyrood, while others, such as defense and constitutional questions, are reserved for Westminster .
Professor of politics at the University of Edinburgh and co-director of the Center for Constitutional Change, Nicola McEwen admits, however, that the boundaries are blurred in this controversial file. “In principle, equality law is a reserved competence of the UK. However, the process of applying for a Gender Recognition Certificate is a devolved competence in Scotland. The issue here is whether Scottish law will have an adverse impact on British law. »
A legal tussle
For Nicola McEwen, it is “difficult to say” if this new chapter in the sometimes stormy relations between London and Edinburgh will whip up the ardor of the Scottish sovereignty movement. But he certainly gives new arguments to Nicola Sturgeon to promote the holding of another referendum for independence, which all the Conservative prime ministers since Boris Johnson have bluntly refused.
Reacting to the British veto, the Scottish Prime Minister accused London of using trans people as “a political weapon” and declared that she wanted to go to court to defend her law, but also “the institution that is the Scottish Parliament, the capacity of Scottish parliamentarians, democratically elected, to legislate in their areas of competence”.
It would not be the first legal tussle between London and Edinburgh.
Three months ago, Britain’s Supreme Court ruled that Scotland could not hold another independence referendum without London’s agreement, sparking the ire of Mme Sturgeon. The Prime Minister then replied that she would turn the next British election (scheduled for the end of 2024) into a “de facto” vote on Scottish independence, a position which she seems to have since softened.
In 2014, the Scottish independence referendum ended in a 45% defeat for the Yes party, against 55% for the No party.
Gender reassignment laws around the world
Argentina was the first country to allow the change of gender in civil status upon simple declaration, and this, in 2012.
In Denmark, Belgium, Ireland, Luxembourg, Malta, Spain and Portugal, simply ask the competent authorities to change your gender on the civil status, and it will be changed without obligation to provide medical opinion. Germany should be the next European country on the list.
In France, the modification of civil status is always determined by a court. The person who wishes to make this change must provide proof that they are socially recognized as the gender they claim.
In Quebec, gender reassignment has been legal for ages 14 and older since 2016, but must be supported by a letter of support from a medical professional and an affidavit.
In the United States, since April 2022, American citizens can choose the mention “X” (neutral) to define their gender on their passport.
In 2020, Hungary ended the legal recognition of transgender people, relying on the notion of “sex at birth”.
Sources: Agence France-Presse, BBC, Euronews, 20 minutes, Independent, Associated Press