Today the Scottish Parliament looks set to pass Nicola Sturgeon’s controversial reforms to gender recognition law.
Under the plans, individuals will no longer require a psychiatric diagnosis of gender dysphoria to apply for a Gender Recognition Certificate (GRC); the process will also be extended for the first time to 16- and 17-year-olds for the first time.
The law’s passage through Holyrood has not been straightforward; the final vote was moved to today after business managers decided not to have MSPs push on through the night yesterday. The Scottish Conservatives have been fighting a procedural rearguard action in order to try and delay the vote until the new year; a total of 153 amendments have been considered over the past few days.
There was also controversy after women protesting the new legislation were expelled from Holyrood’s public gallery during a debate.
Support and opposition cuts across party lines, with the normally ultra-disciplined Nationalists divided on the question. Joanna Cherry, a high-profile critic of the First Minister, has alleged that SNP politicians in Westminster and Holyrood are “scared to speak out“.
But it looks as if MSPs from every party, except perhaps the Scottish Greens, will be on both sides in the final vote.
Unfortunately, that won’t be the end of the matter, because the new regime in Scotland will also tee up a showdown with Westminster. Government sources told the Times that the two legislatures are now on a “constitutional collision course”.
Why? Because whilst Sturgeon’s new gender-recognition regime will only apply in Scotland, GRCs issued under it will be valid throughout the United Kingdom. That means that institutions which refused to recognise them, with their much laxer requirements and shorter timelines, could be in breach of the Equality Act. Per the Times:
“A Whitehall source suggested that if a male Scottish prisoner in an English jail received a gender-recognition certificate three months after self-identifying as a woman, the prison could be in breach of the Equality Act for refusing their request to transfer to a female jail.”
As their source goes on to point out, this is the first time that Holyrood legislation has had “direct divergence effects undermining Westminster rules”. But that raises an obvious question, especially in light of the Supreme Court’s recent ruling on Sturgeon’s referendum attempt: if equalities legislation is reserved, why is the Scottish Parliament allowed to pass equalities legislation at all?
So long as the new law stands, the Government’s options aren’t great; either legislate or regulate to restrict recognition of Scottish GRCs to Scotland, creating divergent equalities law and de facto devolving it, or allow a two-tier gender recognition system and allow Holyrood to create a pathway for bypassing Westminster legislation (which, thinking about it, is also a sort of de facto devolution).
Whatever the resolution on this particular issue, it highlights just now important seemingly narrow areas of regulation can be to maintaining proper, UK-wide frameworks of law. This was precisely the point made, at length, by myself and others during the battle over Section 11 of Theresa May’s Withdrawal Bill and the fate of powers repatriated from the European Union.
At the time, advocates of handing any ex-EU power over to the devolved legislatures if the overall policy area was devolved asked why it was so essential that Westminster maintain control of boring, technical subjects such as food labelling.
But of course, if you want to maintain a coherent and fully-integrated single market, uniform labelling standards are essential. Even a small change to packaging regulations in Scotland would require separate manufacturing lines for Scottish products, imposing substantial costs and driving divergence. Devolving powers previously exercised by Brussels would have given the SNP the chance to do this hundreds of times.
Although the battle over Section 11 was lost, it was eventually set right via the UK Internal Market Act. But this new constitutional clash suggests the lessons of that legislation have not yet been learned.
The Scottish Government insists that its gender reform legislation is within competence because it doesn’t impact the Equality Act, and the Gender Recognition Act is treated as a devolved competence.
Yet the two subjects are obviously tightly inter-linked, and in in terms of the practical application of the law, the latter will have a clear impact on the enforcement of the former – hence Kemi Badenoch’s eleventh-hour meeting with her Scottish Government counterpart.
If Westminster wants to maintain a unified and uniform legal framework in any area, then it and it alone needs to be responsible for developing and enforcing it.