We need your help now

Support from readers like you keeps The Journal open.

You are visiting us because we have something you value. Independent, unbiased news that tells the truth. Advertising revenue goes some way to support our mission, but this year it has not been enough.

If you've seen value in our reporting, please contribute what you can, so we can continue to produce accurate and meaningful journalism. For everyone who needs it.

Members of the Scottish Family Party protest alongside supporters of the Gender Recognition Reform Bill outside the Scottish Parliament on 20 Dec, 2022. PA
gender reform bill

Explainer: Why is the UK government trying to block a Scottish gender reform Bill?

An attempt to block the Bill under a never before used order has been branded a ‘nuclear option’.

SCOTLAND’S SOCIAL JUSTICE Secretary has condemned the “increasingly draconian” UK Government after it confirmed legislation to reform the gender recognition process north of the border will be blocked.

Shona Robison insists the Gender Recognition Reform (Scotland) Bill “doesn’t impact on UK equality law”, but rather “simplifies the process for obtaining a gender recognition certificate”.

However, Scottish Secretary Alister Jack, who is a member of the Scottish Conservatives, has announced he will make a Section 35 order – a never before utilised section of the 1998 Scotland Act – to prevent the Bill from gaining royal assent.

So what is the Gender Recognition Reform Bill?

In late December, Members of the Scottish Parliament (MSPs) voted to pass the Gender Recognition Reform Bill by 86 votes to 39.

The Bill will remove the need for a medical diagnosis of gender dysphoria to obtain a gender recognition certificate.

It also lowers the minimum age for applicants to 16 and drops the time required for an applicant to live in their acquired gender from two years to three months – six for those aged 16 and 17 – though with a three-month reflection period.

However, Scottish Secretary Alister Jack has blocked the Bill by legally challenging it using a Section 35 order.

What’s a Section 35 order?

Once a Bill has passed in the UK, it then needs to be granted royal assent.

This is when the monarch formally agrees to make the bill into an Act of Parliament, or law.

However, under Section 35 of the Scotland Act, if a Bill contains modifications which a Secretary of State has “reasonable grounds to believe would have an adverse effect on the operation of the law”, they can prohibit that Bill from gaining royal assent.

So why is the Scottish Secretary legally challenging the Bill under Section 35?

Scottish Secretary Alister Jack has responsibility for the Scotland Office.

He claims the reforms – which simplify the process for trans people to obtain a gender recognition certificate (GRC) – could have “chilling effects on single-sex spaces” for women.

He also claims there could be “significant complications” from having different processes for obtaining a GRC in different parts of the UK which would have an “adverse impact” on the operation of the UK Equality Act. 

The UK Equality Act allows for transgender people to be excluded from single-sex spaces such as changing rooms and shelters.

However, it might be unlawful to exclude transgender people from, or limit their access to, separate or single-sex service if it cannot be shown that such action is a “proportionate means of achieving a legitimate aim”. 

A “legitimate aim” must not be discriminatory in itself and proportionality requires the action to be fairly balanced, appropriate and necessary.

This applies whether or not the person has a Gender Recognition Certificate.

Speaking after the passing of the Bill in December, Jack said he had “concerns” about “safety issues for women and children”. 

The Scottish government insists the Bill will not impact the Equality Act.

However, Scottish Conservative equalities spokeswoman Rachael Hamilton has accused Nicola Sturgeon’s Government of having refused to listen to those who raised concerns about the Bill’s impact on single-sex spaces.

She told BBC Radio Scotland: “The Scottish Government were warned about the cross-border issues and the effect it would have on single-sex spaces but they didn’t listen to the voices of women’s organisations who raised those concerns.”

What has been the response from Nicole Sturgeon, the First Minister of Scotland?

Sturgeon has branded the move a “full-frontal attack on our democratically-elected Scottish Parliament and its ability to make its own decisions on devolved matters”.

Yesterday, she told reporters in Edinburgh that her government is prepared to “rigorously” defend the gender legislation all the way to the UK’s top court if the UK government blocked it.

“In my view there are no grounds to challenge this legislation,” she added.

“So if there is a decision to challenge, in my view, it will be quite simply a political decision and I think it will be using trans people — already one of the most vulnerable, stigmatised groups in our society — as a political weapon.

“And I think that will be unconscionable and indefensible and really quite disgraceful.”

What has the response been from MSPs backing the Bill?

As noted above, Scotland’s Social Justice Secretary Shona Robison condemned the UK government as “increasingly draconian”.

She insisted that the Bill doesn’t impact on UK equality law, but “simplifies the process for obtaining a gender recognition certificate”.

Robison added that Scottish ministers are “very, very confident in our position of this legislation being competent”.

Speaking to BBC Radio Scotland’s Good Morning Scotland programme this morning, she said: “We’re very confident it does not impact on UK legislation, and we will take whatever steps we need to ensure the democratic will of the Scottish Parliament is not frustrated.”

Referring to attempts to block the Bill from gaining royal assent, Robison said: “This is the latest in a string of actions undermining rights, from laws to ban strikes to other areas of people’s rights, to now using one of the most marginalised groups as a political weapon.”

She also accused Jack of “wanting to throw his weight about”, and claimed there are also some members of Rishi Sunak’s Government who “want to row back on human rights and equalities legislation”.

Robison added that the use of the Section 35 order was a “nuclear option” and that using it reveals “there is no legal basis to challenge it”.

“This is all about politics,” said Robison, “and I think using one of the most marginalised groups in society as a political weapon is simply outrageous.”

-With additional reporting from AFP and Diarmuid Pepper

Press Association