CNN
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The UK government has blocked a new law that would have allowed transgender people in Scotland to change their legal gender without a medical diagnosis – a controversial move that has set fire to an already highly emotional Scottish independence debate pour oil.
Scotland’s First Minister, Nicola Sturgeon, tweeted on Monday that it was “a full-blown frontal attack on our democratically elected Scottish Parliament and its ability to make its own decisions on devolved matters”.
Scottish minister Alister Jack had earlier announced that Westminster had taken the very unusual step of blocking the Scottish bill from becoming law because it feared its impact on equality law across the UK – refuted by transgender rights group This reason.
Here’s what you need to know:
Scotland passed a new law in December to make it easier for people to change their legal gender.
Under the current system, trans people have to jump through a number of hurdles to change the gender markers on their documents. They must have a medical diagnosis of gender dysphoria — a condition defined by distress caused by differences between a person’s body and their gender identity — and prove they have lived in their chosen gender for two years. They must also be over 18 years old.
The new rules would drop the medical diagnosis requirement in favor of self-determination. The waiting time will be shortened from two years to six months, and the age limit will be lowered to 16.
Activists have long argued that the current process is too bureaucratic, expensive and intrusive. The Scottish government held two major public consultations on the issue and proposed new, simpler rules.
“We believe that trans people should not have to go through a process that can be demeaning, intrusive, painful and stressful in order to receive legal recognition in their living gender,” the government said in proposing the new rules.
In the end, an overwhelming majority of Scottish lawmakers voted in favor of the change – with a final vote of 86 in favor and 39 against.
The bill has sparked emotional responses on both sides. The debate over the proposal was one of the longest and most heated in the history of the Scottish Parliament, and the final vote had to be postponed when protesters shouted “shame on you” at lawmakers.
Many human rights and equality groups and activists welcomed the new rules, noting that self-determination is the norm in a growing number of democracies.
The Equality Network, a leading Scottish LGBTI rights organisation, said that “after years of growing public prejudice against transgender people, things have started to move forward”.
But the bill has also drawn plenty of criticism, including from “Harry Potter” author JK Rowling, who said the law could have a detrimental impact on the rights of women and girls.
Rowling and other opponents of the bill argue that the new rules will weaken protections for spaces designed to make women feel safe, such as women-only shelters.
The Scottish government rejected that argument, saying the law would not change the rules about who can and cannot enter single-sex spaces. It also said that experience in countries that made similar changes showed no adverse effects on other groups.
Activists agreed. “There is no downside,” campaign group Stonewall said. “For example, when Ireland did this, no one else was affected, except transgender people, who for the first time were able to have their gender recognized by the state in a direct and empowering way.”
Scotland has a devolved government, which means that many (but not all) decisions are made in the Scottish Parliament at Holyroodhouse, Edinburgh.
Scots can pass their own laws on issues such as healthcare, education and the environment, while the UK parliament in Westminster remains in charge of issues such as defence, national security, immigration and foreign policy.
The UK government can prevent a Scottish bill from becoming law, but only in a few very specific circumstances – for example if it believes that a Scottish bill is not in line with any international agreement, is not in the interest of defense and national security, or if it believes the bill would Scottish law conflicts with English law on matters within its purview.
Under rules governing how Scotland is governed, after Holyrood passed a bill, London had four weeks to review it before sending it to the king for royal assent, the final formal step required before it becomes law.
Over the past few years, the British government has leaned towards the anti-Cross Culture Wars debate to appeal to both its traditional Conservative base and new working-class voters in the north of England.
Former prime minister Boris Johnson’s government has suspended several initiatives targeting the country’s LGBTQ community, including plans to make it easier for transgender people to change gender markers in England and Wales.
Whether this is a viable strategy in an election remains questionable. Before becoming prime minister, however, one of Rishi Sunak’s first pledges during the 2022 Conservative leadership campaign was to protect “women’s rights”, he wrote in a Twitter thread.
The post linked to an article in which an unnamed Sunak ally told the Daily Mail that Sunak would publish a manifesto against trans women in women’s sports and called on schools to “Being more cautious when teaching about sex and gender issues”.
In his statement, Jack argued that the bill could affect equality legislation across the UK.
“The bill will have significant implications for UK-wide equality issues in Scotland, England and Wales, among other things. I therefore conclude that (blocking it) is the necessary and correct course of action.”
But advocates disagree. Human rights group TransActual told CNN in a statement that it sees “no reason” for the UK government to decide to block the bill due to concerns about equality laws across the UK.
“There is no justification for this action by Scottish Minister Alister Jack. He will lose any case brought by the Scottish Government because the Equality Act is 100% independent of the Gender Recognition Act – nothing in the Scottish Act Change that,” TransActual Chair Helen Belcher said in a statement.
“Transgender people never needed gender recognition to be protected under the Equality Act,” she added.
Tensions between London and Edinburgh over Scottish independence were already high.
Scotland last held a referendum in 2014, with voters rejecting the prospect of independence 55% to 45% – but things have changed since then, largely because of Brexit.
The Scottish people voted to remain in the EU during a 2016 referendum, and the pro-independence Scottish National Party argued that Scots were being dragged out of the bloc against their will, pushing for a new independence referendum.
The UK government has said it will not agree to a new independence referendum, and the UK Supreme Court ruled in November that the Scottish government cannot unilaterally hold a second independence referendum.
