The fiery House of Commons debate on Tuesday over the Westminster government’s unprecedented decision to block the Gender Recognition Bill passed in Scotland was a showcase of precast positions.
Detail seemed not to matter to either side as they resorted to reflex. Scottish nationalists cried foul over the impact on their free will, while English politicians dutifully backed the move as a threat to the functioning of the union. Nuance was caught in the crossfire. Meanwhile, nobody apart from Conservative MP Alister Jack, the Scottish secretary, knew the legal rationale, and he wasn’t telling.
Scottish National Party MP Ian Blackford criticised the UK government’s intervention with a throaty exhortation that full independence was now the “only way” for his fellow Scots to protect their rights. “I have just won a £10 note,” was Jack’s simple and pointed reply, which implied that he believed he knew what Blackford would conclude before he said it.
Perhaps tenners were also waged on the other side. A succession of English Tories and quite a few from Labour backed Jack’s decision without yet really knowing why it had been made, suggesting it might be because they did not like the content of what the Scots had decided for themselves.
The Scottish Parliament in Holyrood recently passed a Bill simplifying the rules and lowering the age for a person to get a gender recognition certificate, a piece of paper that officially changes one’s gender in the eyes of the law. Across Britain the age is 18, but Holyrood cut it to 16.
Scottish transgender people also would no longer need a medical diagnosis of gender dysphoria for a certificate and could decide for themselves. The Scots also voted to cut the time it would take to obtain a certificate from two years to just a few months.
The changes are broadly similar to moves introduced in Ireland more than seven years ago. Yet the decision to allow people who want to legally change their gender by “self-certifying” is more controversial in Britain, where the kettle on transgender issues boils at a far higher temperature.
Jack has invoked a never-before-used provision of devolution law to block the Bill from receiving royal assent. He suggested during the Commons debate that he did so because of legal advice that Scotland’s law would harm the rights of women and children in the rest of Britain by affecting union-wide equality legislation.
Jack made references to protecting the rights of women in single-sex areas, schools and equal pay. As the debate progressed, he refused to give any further detail on precisely why allowing Scotland to decide a different regime would affect the rights of people in England and Wales.
For that is the critical legal issue, and not the wisdom of what the Scots have decided. Gender law is a devolved power.
Jack said the legal advice would be published only after the debate, which suggested its detail mattered little to the discussion. The constitutional row will end up in court. Rishi Sunak’s UK government has its first row with Nicola Sturgeon’s devolved Scottish administration. It could suit both sides.