December 9, 2023
Scottish Court Upholds UK Decision to Block Scotland's Landmark Gender-Recognition Bill
Danica Kirka READ TIME: 3 MIN.
Scotland's highest civil court on Friday upheld the British government's move to block a landmark gender-recognition law passed by the Scottish parliament, underscoring the growing divide over local control of legislation in the nations of the United Kingdom.
The ruling by the Court of Session in Edinburgh is a setback for Scotland's semi-autonomous government, which overwhelmingly approved a bill allowing anyone 16 or older to change the gender designation on their identity documents by self-declaration, removing the need for a medical diagnosis of gender dysphoria.
The legislation set Scotland apart from the rest of the U.K., where the minimum age is 18 and a medical diagnosis is required.
Britain's central government blocked the law, invoking for the first time a section of the 25-year-old act that gave the Scottish parliament control over most of its own affairs. Section 35 gives U.K. authorities the power to prevent the implementation of measures that interfere with matters reserved to the central government.
The decision highlights the tensions inherent within constitutional arrangements that cede authority over many areas of daily life to the "devolved" administrations in Scotland, Wales and Northern Ireland, while reserving control over national issues and those concerning England for the U.K. government in Westminster.
Frustration with the U.K.'s continued role in Scotland has fueled the country's independence movement. Scotland's parliament, based in the Holyrood area of Edinburgh, is controlled by the pro-independence Scottish National Party.
"Today's judgment confirms beyond doubt that devolution is fundamentally flawed,'' Scottish First Minister Humza Yousaf said in a post on X, formerly Twitter. "The court has confirmed that legislation passed by a majority in Holyrood can be struck down by Westminster."
Yousaf said he would nonetheless respect the judgment.
The confrontation began earlier this year when Scottish lawmakers overwhelmingly approved the gender recognition bill by a vote of 86-39.
But the U.K. government prevented the bill from receiving royal assent – the final formality before legislation becomes a law. Scotland Secretary Alister Jack said at the time that he was concerned the bill conflicted with "Great Britain-wide equalities legislation" that guarantees women and girls access to single-sex spaces such as changing rooms and shelters.
Scottish officials challenged the central government's actions, arguing that they interfered with Scotland's right to govern itself.
The Court of Session disagreed.
"Section 35 does not, in and of itself, impact on the separation of powers or other fundamental constitutional principle,'' Judge Shona Haldane said in her ruling. "Rather it is itself part of the constitutional framework."
Regardless of the constitutional issues, the decision disappointed trans-rights campaigners who back self-identification for changes in gender identification.
"This unfortunately means more uncertainty for trans people in Scotland, who will now be waiting once again, to see whether they will be able to have their gender legally recognized through a process that is in line with leading nations like Ireland, Canada and New Zealand," the LGBTQ+ rights group Stonewall said in a statement.
The Scottish government says the legal change would have improved the lives of transgender people by making it easier for them to get official documents that correspond with their gender identities.
Opponents claim it risked allowing predatory men to gain access to spaces intended for women, such as shelters for domestic abuse survivors. Others argue that the minimum age for transitioning should remain at 18.