The UK government has blocked a bill recently approved by the Scottish Parliament (passed by 86 votes to 39) that aims to make it easier for transgender people to self-identify. Accepting the bill would make Scotland the only part of the United Kingdom that allows individuals to self-identify their gender. The legislation would make it possible for transgender persons to obtain an official gender recognition certificate without the requirement of a preliminary medical diagnosis of gender dysphoria. That is to say, the certificate would just state the person’s self-declared gender identity.
The legislation would only require people wishing to change their gender to have lived a mere three months (instead of the existing requirement of two years) of their lives in accordance with their chosen gender. The minimum age for obtaining the gender recognition certificate would also be brought down from 18 to 16. That would mean that under the new legislation (if implemented), 16-year-old teenagers, who are not yet legally able to consent to a tattoo, could change their legal gender without being given any medical advice or assessment beforehand.
It is not only British Conservatives, but members of the liberal opposition, too, who are alarmed by these developments. Even Keir Starmer, the leader of the Labour Party came out in opposition to reducing the age limit for legally changing one’s gender.
The decision to implement this law would not only make it easier for people to change their gender, but it would have a series of other consequences as well. Single-sex schools, clubs and other civil society organisations would be forced to accept individuals who claim to be members of the opposite sex, but possess the physical and other characteristics of the opposite gender. Prison transfers as well as equal pay laws would be similarly affected by the legislation. Not to mention domestic violence or rape crisis centres—a violent male partner could claim to identify as female, and without a medical diagnosis could be classified as such, putting domestically abused women at great risk.
In short, the worry is that the legislation would allow considerably more leeway for bad-faith actors.
Since, at the moment, under UK-wide equality legislation people are not allowed to self-identify from the legal perspective, the new Scottish law would also lead to a situation where there are two different gender recognition schemes in one country. The British government in fact adopted this reasoning to justify the halt—the Scottish bill might violate the UK Equality Act. Nicola Sturgeon, the First Minister of Scotland and leader of the Scottish National Party, on the other hand, argued that the halt violates Scotland’s sovereignty to legislate in devolved matters.
The Scottish Parliament, which passed the legislation, is the devolved Parliament of Scotland. Members of the Scottish Parliament are democratically elected for five-year-long mandates. In the latest 2021 elections, the Scottish National Party (SNP, a national, social democratic party) won a majority in the unicameral parliament. While the Parliament has its historic roots, the legislative body was recreated only in 1998 after Scotland voted on a referendum in favour of devolution. Since then, the Parliament have the right to legislate in any areas that are not ’reserved’ to the Parliament of the United Kingdom. Westminster, on the other hand, has the right to amend the laws passed by the Scottish parliament, as well as to reduce the areas it can legislate in. Blocking the gender recognition act is the first time when the UK halted a piece of Scottish legislation. Had the UK not halted it, the bill would have gone for royal assessment.
The scandal is important both from a culture war and a devolution perspective. On the one hand, the fact that the legislation, which was first proposed in the Scottish Parliament six years ago but passed only today, signifies how fast the acceptable norms of the day change. Procedures that were seen in violation of existing equality protections for women only six years ago are now cheered as progress. Less than a year ago, when Hungary passed its children protection law and held a referendum on whether non-age appropriate sexual content and the promotion of gender reassignment surgery should be available for minors, Hungary was criticised for its steps. Some of the criticisms dismissed the legislation, saying that such content and procedures are not available for children in Hungary, therefore, the law just demonises the LGBTQ community.
However, the recent legislation in Scotland and a series of other developments in the Western world demonstrate that there is an accelerating tendency to legally facilitate the promotion of overtly sexual contents and gender reassignment procedures to minors.
By contrast, the aim of the Hungarian legislation is clear: it is meant to ensure that Hungarian children are protected in advance, before these trends arrive in Hungary, and it is not about banning or demonising homosexuality, as opposed to the deliberate misinterpretations of the legal measure have suggested. From the point of view of devolution, the conflict between the UK and Scotland over jurisdiction shows the struggles to keep (or not to keep) the Union together. Since the UK government’s decision to block the legislation is rather unprecedented and a serious intervention, it might further fuel independence efforts in Scotland. Alternatively, the UK government might be pushed to let this legislation slip through to avoid pouring oil on the fire of Scottish nationalism—which, however, would be rather regrettable from the point of view of the safety of British women.
