Blocking the Gender Reform Bill is authoritarian, but not for the reasons you might think

Westminster's decision to invoke section 35 and block Holyrood's gender reform bill has rightly made a lot of people very upset. And yet accusations that this is a nakedly authoritarian move, that it's a direct attack on Scottish democracy, are far from convincing. That's not to say they're without foundation, but there's probably a good dollop of hyperbole in here too.

Let me first re-iterate that I think Boris Johnson was a pseudo-fascist lying piece of shit and that Liz Truss was as thick as a plank. I'm not going to pull any punches when I think the Tories are undermining democracy for their own petty power games. I despise them to the core.

But just because they're a bunch of dishonest racist powermongers does not mean that every single thing the government does is infused with a sheer malevolent lust for spite, a wilful desire to go into people's homes at night and wreck up the place. Sometimes they're just unthinking idiots. Occasionally, if only through sheer fluke, they actually get things right. So which is it this time ?

On the surface it might at first seem that it's a strange thing to suggest that gender equality is a reserved power for the Westminster central government. While it's pretty obvious that things like foreign relations are necessarily not the purview of the devolved administrations, this is far less clear for things which could in principle be entirely internal matters. After all, Northern Ireland has markedly different rulings concerning same-sex marriage, abortion and the like.

But this turns out to be because the devolution rules are different in each region. While Northern Ireland does have "equal opportunities" as a transferred power, this is not the case for the Scottish and Welsh governments. And so straight away it becomes apparent that if the Scottish parliament is giving more equal gender-based opportunities, it has stepped outside of its mandate, even if that would be a progressive, desirable thing.

As I see it there are three aspects to this. There's the purely legal, whether this is permissible under law or not - the absolute bottom line. But there's also the moral, whether this would be a good thing for the affected individuals. And there's the political, the effect this will have on Westminster-Holyrood relations.

First, let's look at the legalities. I listened to Alister Jack's statement in the Commons but it was probably about 90% waffle. Fortunately the official Statement of Reasons he kept referring to is much better. As a non-lawyer it seems pretty clear to me from reading this, taking it at face value, that Westminster is on very secure legal footing here. 

The 2010 Act makes “sex” a protected characteristic and makes provisions about when conduct relating to that protected characteristic is unlawful. Section 9 of the 2004 Act provides that unless exceptions apply, the effect of a full GRC is that “for all purposes” the person’s sex becomes as certified. As a matter of general principle, a full GRC has the effect of changing the sex that a person has as a protected characteristic for the purposes of the 2010 Act.[footnote 2] This is subject to a contrary intention being established in relation to the interpretation of particular provisions of the 2010 Act.

The 2010 Act as a whole was carefully drafted in the light of, and reflecting, the specific limits of the 2004 Act and the relative difficulty with which a person could legally change their sex “for all purposes” (per s.9), including under the 2010 Act itself. The Bill alters that careful balance.

The Bill does not purport to require that a Scottish GRC issued under its terms would have any legal effect other than in Scots law; it could not, within legislative competence, have done so. It is highly problematic both in principle and practically for a citizen of the UK to have a different gender, and legal sex (including for the purposes of the 2010 Act), depending upon where they happen to be within the UK, and which system of law applies to them. It is practically and legally undesirable for all, including in particular the individual holder of the GRC, that a person will have one legal sex in Scotland and a different one in England, Wales and Northern Ireland.

The legislative consent motion that was passed by the Scottish Parliament alongside the GRA 2004 recognised, at that time, the desirability of having a single coherent regime for obtaining a GRC which applied uniformly across the UK. That desirability has not changed.

I mean... yeah, I can see how people being of legally different genders in different parts of the UK would be problematic. It does not at all seem like an egregious case of draconian, authoritarian overreach for Westminster to say that Acts previously agreed with the other devolved governments as national issues, which are quite explicitly reserved matters, should remain as such. Indeed, for the Scottish government to now unilaterally decide that it can legislate on this seems almost like a deliberately provocative move on their part, and conversely, Westminster is duty-bound to block this because otherwise it opens a Pandora's box of potential unfairness. It has to prevent devolved governments from acting on reserved matters, otherwise it's in a legal nightmare with no clear rules as to who can legislate on what at all.

What of the second aspect, morality ? My view is that here Westminster is more obviously at fault. It lists the reasons for making gender certification a difficult process in the 2004 Act as being "safeguards" which it views as still necessary; legal or not, it clearly doesn't approve of the new proposal. 

The amendments made by the Bill to the 2004 Act will make it quicker and easier for Scottish applicants to obtain a full GRC, removing a number of measures which the UK government regards as important safeguards, including:

• the removal of the requirement for an applicant to have or have had a diagnosis of gender dysphoria (and, correspondingly, the removal of the requirement for an applicant to provide medical reports with their application)
• a reduction in the minimum age for applicants from 18 to 16
• a reduction in the period for which an applicant must have lived in their acquired gender before submitting an application, from 2 years to 3 months (or 6 months for applicants aged under 18), alongside the introduction of a mandatory 3 month reflection period
• the removal of the requirement for an applicant to provide any evidence that they have lived in their acquired gender when submitting an application
• the removal of the requirement for a Panel to be satisfied that the applicant meets the criteria, with applications instead being made to the Registrar General for Scotland.

Now, maybe in 2004 this was a progressive piece of legislation - cautious, yes, but there's nothing wrong with incremental progress. The problem is the government doesn't want to make any progress. Personally I don't see any of these conditions (except possibly the age) as "important safeguards" at all, rather as government interference in personal liberty. And to be honest, I do have some reservations about the whole notion of self-identifying one's gender. But I mean, we're talking about issuing certificates here. We're not talking about surgery. The Bill wouldn't allow anyone to wander in off the street to their nearest hospital and declare, "I demand you chop off my willy !" or, "Give me boobies, dammit !".

No, the initial caution of the original Act was fine. But the right approach would then have been to progressively relax its restrictions as it became clear that the detrimental effects of gender certification were negligible.

The third, political aspect is more complex. Is Holyrood deliberately provoking Westminster ? The vast majority of people do not care about gender certification because it will never affect them. So it would make sense for a Scottish government to deliberately demonstrate the limits of their own power and how Westminster still has all the real power. A manufactured crisis is at least plausible; that Westminster's block is legal is neither here nor there - that the Tories also don't like it on its own terms makes it easy to play as a culture war.

On the other hand, the government's declaration that it has only done this reluctantly, and that this was an option of last resort, rings very hollow. What steps, if any, have they actually taken to avoid this ? None so far as I can tell. They could at the very least have made it clear to everyone that equal opportunities are a reserved matter. They didn't. They don't appear to have engaged in any pre-emptive discussions at all, nor made any attempt to raise this as a Westminster issue. 

Saying, "if Holyrood presents us with an alternative, we'll consider it" after the fact is basically useless. What exactly are the sticking points here ? Give some indication of what should be adjusted. Is it the "safeguards" ? In that case things are probably at an impasse. But if it's the legal application of the certificates, as to whether those obtained in one region are legally valid in another, that ought to be possible to adjust. Since the Scottish Bill would apply only to those people born or ordinarily resident in Scotland, any concerns about GRC-tourism would seem to be avoided entirely. Allowing GRCs issued in one region to be legally valid across the whole UK would create a postcode lottery, but might be a way to circumvent the thorny issue reserved matters.

All this reminds me of the Supreme Court's ruling that the Scottish government cannot itself call a referendum on independence, even an explicitly advisory one. Legally, this makes perfect sense. It's a reserved matter with unavoidable practical consequences, and in many ways Scotland is not separate from the UK at all : Westminster and Holyrood are, supposedly at least, one and the same on some issues. The problem is that they don't see themselves this way, and that if Holyrood wants something Westminster isn't prepared to grant it, it has no real options at all.

I'm also slowly reading my way through Labour's 155-page report on its plans for the UK's future. And I have to agree, we are hyper-centralised, and what's worse, we're incoherent in our devolution. It doesn't make sense that Northern Ireland can have equal opportunities as a devolved matter but the other countries can't. 

So while there may well be some element of Westminster trying to browbeat Holyrood into submission, it's likely not a case of flagrant authoritarian overreach. It's a much trickier issue, a flaw in the system itself. True, another government could have taken steps to avoid the Bill being raised at all, or made it legally possible to accept. It could have accepted the need for greater devolution. But ultimately, any government in this situation would be legally obligated to reject it. What the Tories have done is inappropriately deploy their legitimate option of last resort as their first response.

This is a valuable stress-test that points to the urgent need for reform. Independence would be one solution, federalisation another : but I'll bet you anything you like the Tory "solution" will be to at best do absolutely sod-all and at worst to insult the Scots. That, not the rejection of the Bill itself, is what marks them out as authoritarian and anti-democratic : their utter refusal to engage with other points of view.

EDIT : The thread here has some very interesting and in-depth discussion on whether the Bill really does infringe on reserved matters or not. Unsurprisingly, this turns out to be complicated. The court case will undoubtedly be another must-see episode in the ongoing hit series that is Modern Politics.