Trans Rights and the Scottish Parliament: Testing the Constitutional Limits of Scottish Self-government

by | Oct 23, 2023

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About Josep Maria Tirapu

Josep M. Tirapu is a PhD candidate in Law at the University of Cambridge. He holds an MPhil in Law from the University of Oxford and a Master of Research in Political Science from Universitat Pompeu Fabra (Barcelona). His research is focused on stateless nations, federalism, territorial conflict, and human rights.

The British government’s recent veto of the Scottish Gender Recognition Bill, alleging its impact on matters reserved for the UK Parliament, has caused significant controversy. The Bill, which was passed by the Scottish Parliament on 22 December 2022, was intended to make it simpler for transgender people to legally change their gender, removing a number of requirements which trans rights advocates had described as “intrusive and dehumanising”. This is the first time that the British government has used its powers to block a bill of a devolved parliament. The veto, defined by Nicola Sturgeon as a “full-frontal attack”, has since been judicially challenged by the Scottish government.

The Bill blockage came via an order issued under Section 35 of the Scotland Act. This Section grants the UK Secretary of State the power to veto a Scottish bill from becoming law if it (1) modifies the law “as it applies to reserved matters”; and (2) the Secretary has “reasonable grounds to believe” that the bill “would have an adverse effect on the operation of the law as it applies to reserved matters.”

To understand what is at stake in this conflict, two questions need to be addressed separately. The first is whether the Scottish Bill affects matters reserved to the British Parliament. The UK Secretary of State argues that the Bill relates to the reserved matter of “equal opportunities” (Schedule 5 of the Scotland Act) since it adversely affects the operation of the 2010 UK Equality Act. Among other concerns, the UK government highlights the effects of creating “two parallel and very different regimes” in Scotland and in the rest of the UK [14-21], as well as an increased “risk of fraudulent applications” for gender recognition certificates [22-28].

Determining whether the Bill affects “equal opportunities” is not a straightforward matter. As asserted by the Scottish government, the creation of a parallel regime does not in itself pose a risk to equal opportunities [32]. Indeed, the coexistence of divergent legal regulations across the UK is precisely what devolution is all about. Furthermore, the Scottish executive contends that, based on the experiences in other jurisdictions where similar changes were made, there is no evidence that these reforms would have led to an increase of fraudulent applications [33].

The second question is whether the UK government’s veto is lawful. This is independent from the previous question: even if one is convinced that the Scottish Gender Recognition Bill is beyond competence, it could still be maintained that the order of the British government constitutes an unlawful use of its powers.

This question therefore depends on how Section 35 is constructed. McCorkindale and McHargh posit that Section 35 should be interpreted in the context of the overall devolution framework, in which the Scottish Parliament has a central role as a “self-standing democratically elected legislature” (AXA case [46]). The democratic legitimacy vested in this institution seems to lean towards a narrow interpretation of Section 35: conferring extensive veto powers to the British executive could undermine the autonomy of the Scottish Parliament and, therefore, the self-government of Scotland.

Indeed, the Memorandum of Understanding for devolution regards the Secretary of State’s intervention as a “last resort” [27], leading some commentators to describe Section 35 as the “nuclear option”. In this respect, the “reasonable grounds” for believing that the bill has an “adverse effect in the operation of the law as it applies to reserved matters”, which the Secretary of State must establish, should not be merely speculative or hypothetical, but rather premised on solid and cogent reasons.

A narrow interpretation of section 35 would not leave the UK government defenceless. If the British executive deems a Scottish bill to be beyond competence, it can refer the issue to the Supreme Court, which is more suited to act as an impartial arbiter. An approach respectful to the devolution framework leans towards considering the Supreme Court as the primary authority for defining the limits of the Scottish Parliament’s jurisdiction, leaving the British executive the possibility to intervene only in extreme cases.

In the upcoming weeks, the Scottish Court of Session will determine the legality of the UK’s veto on the Gender Recognition Bill. However, this may not conclusively resolve the dispute, as the losing party is likely to appeal to the Supreme Court. The final outcome will be of relevance in defining the constitutional limits of Scottish self-government, but also the scope of the rights enjoyed by the transgender community. Indeed, this conflict illustrates how human rights and territorial matters can often be inextricably intertwined.

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