Wednesday briefing: The Scottish trans rights law that has turned into a constitutional crisis

In today’s newsletter: For the first time ever, the UK government vetoed a Scottish law change – this is why

Good morning. It’s called the “nuclear option” for a reason: in the 25 years since devolution in 1998, the UK government has never once deployed section 35 of the Scotland Act to unilaterally veto a bill passed by the Scottish parliament. Yesterday, the Scotland secretary Alister Jack used the power for the first time.

The reason for the intervention is the SNP’s gender recognition reform (Scotland) bill, a highly contentious piece of legislation that passed last month making it easier for transgender people to get a gender recognition certificate. Today’s newsletter, with the help of the Guardian’s Scotland correspondent Libby Brooks, explains all the issues at stake – and the constitutional battle that’s still to come. Here are the headlines.

Five big stories

  1. Met Police | The Metropolitan police and the government are coming under pressure from MPs to punish officers who allowed the serial rapist David Carrick to be shielded from the sack despite multiple warnings about his behaviour.

  2. Social care | A multimillionaire dementia home boss paid himself at least £21m in five years despite inspectors finding multiple breaches of staffing, safety and leadership rules, with residents left in dirty incontinence pads and staff accused of rough handling.

  3. UK politics | Jeremy Hunt is planning a “slimmed down” spring budget with no immediate tax cuts as the Conservatives press ahead with attempts to win back economic credibility, Treasury insiders told the Guardian.

  4. UK news | A double decker bus carrying 70 passengers overturned on the A39 in Somerset, leaving 26 people injured but none dead, police said. The bus crashed during sub-zero temperatures that created icy conditions on the roads.

  5. Greta Thunberg | Climate activist Greta Thunberg was briefly detained during a protest against the demolition of a German village to make way for a coalmine. Riot police removed activists, but protesters including Thunberg remained at the site staging a sit-in into Tuesday.

In depth: ‘It’s a perfect storm of culture war and the constitution’

First minister of Scotland Nicola Sturgeon holds a news conference on winter pressures in the NHS, in Edinburgh.
First minister of Scotland Nicola Sturgeon holds a news conference on winter pressures in the NHS, in Edinburgh. Photograph: Reuters

Last month, members of the Scottish parliament passed the gender recognition reform (Scotland) bill, a landmark piece of legislation that was first included in the SNP’s manifesto in 2016. The new law introduces a system of self-declaration for obtaining a gender recognition certificate (GRC). That allows a trans person to change their birth certificate (but is not a condition for updating documents like a passport or a driving licence, or for living in their acquired gender).

“It would make Scotland the first area of the UK to have a system of self-identification for changing one’s gender,” Libby said. “The reform gets rid of the requirement of a medical diagnosis for gender dysphoria, which trans people themselves have described as intrusive and demeaning, and it reduces the age at which you can first apply from 18 to 16.”

To its supporters, the change would streamline a process viewed as – in the words of a consultation published by then minister for equalities Penny Mordaunt before plans for a similar UK-wide reform were shelved – “costly, humiliating and administratively burdensome”, particularly because it requires a psychiatric report which may seem to perpetuate the idea that being trans is a mental illness.

But critics fear that it will result in 16 and 17-year-olds getting a GRC at a time when their gender identity is still in flux, perhaps making it more difficult for them to reverse their social transition later on. They also argue that it could leave women vulnerable to predatory male offenders who may pretend to be trans and get a GRC.

In that view, making it easier to get a GRC will give predators an easier route to access single-sex spaces like rape crisis centres or domestic abuse refuges, and make it more complicated for providers to legally justify exclusions.

As the law stands, a self-identified trans person is not required to produce a GRC to access a single-sex space. In 2022 guidance, the Equality and Human Rights Commission said providers of single-sex spaces can deny trans people access, but the test is whether doing so is “a proportionate means of achieving a legitimate aim”, and “applies whether the person has a Gender Recognition Certificate or not”.

At the moment, about 30 GRCs are granted in Scotland each year. The Scottish government says that under the reformed process, that would rise to 250-300 applications each year. Here’s a full explainer on the changes from December.

While the change to the law in Scotland was enormously controversial, Libby noted, “within Holyrood, MSPs were very closely engaged with the clauses in front of them. It’s important to underline – as well as the disagreements and protests, there was cross-party work going on trying to reach a consensus.”


The law

Secretary of state for Scotland Alister Jack (R) arrives for day four of the Conservative party conference on 5 October 2022 in Birmingham, England.
Secretary of state for Scotland Alister Jack (R) arrives for day four of the Conservative party conference on 5 October 2022 in Birmingham, England. Photograph: Ian Forsyth/Getty Images

In his statement to MPs yesterday confirming the decision to block the bill, Scottish secretary Alister Jack (above) acknowledged that it was a “significant decision” to use such powers for the first time since devolution.

“This is absolutely not about the United Kingdom government being able to veto Scottish parliament legislation whenever it chooses,” he said. But he argued that it was necessary to ensure that “we do not have legal frameworks in one part of the United Kingdom which have adverse effects on reserve matters” – that is, issues which are the responsibility of Westminster alone.

In a paper published yesterday setting out the reasons for that view, the government said that the new law would create two “parallel and very different regimes for issuing and interpreting GRCs within the UK”. It said that it would be “practically and legally undesirable” for people to have a different legal sex in Scotland and the rest of the UK, which it argues could have ramifications for equal pay, single-sex schools in England, and single-sex membership of cross-UK clubs or associations.

All of this is part of a bigger constitutional headache. The powers Jack is using are those under section 35 of the 1998 Scotland Act. Section 35 says that after the Scottish government passes a bill, the UK government has four weeks to stop it becoming law. One reason it can give for doing so is if the Scottish legislation would have an “adverse effect” on the operation of the UK law over reserved matters. There’s a full explainer of section 35 here.

“The UK accepts that gender recognition is devolved to Scotland, but they’re saying they’re worried about whether it also modifies the existing UK law in this case, particularly because it will increase the cohort of those able to apply for a GRC,” Libby said.

That is the subject of significant legal uncertainty. The final version of the act (pdf) specifically says that “nothing in this Act modifies the Equality Act 2010”, the relevant UK-wide legislation. But “just saying that doesn’t make it so,” Libby said.

Those who support the government’s right to intervene here point to a Scottish court judgment in December confirming that both cisgender and transgender women are covered by the legal definition of woman in the UK-wide Equality Act. They argue that the judgment means that legislation concerning trans women in Scotland affects UK-wide equality law, whatever the act says.

The SNP fiercely disputes that analysis, arguing that the UK government should have done more to make representations before the bill was passed instead of using the “nuclear option”, and that the gender recognition reform bill passed by 86 votes to 39 with cross-party support (though there was also a significant SNP rebellion).

Dr Philippa Whitford, the SNP’s spokesperson for Scotland in Westminster, said that there have previously been different marriage ages and voting ages north and south of the border without the suggestion that one adversely affects the other, and insisted that the bill “does not change the 2010 equality act or give any additional rights to those with a certificate”. The UK government, she said, is “using one of the most marginalised groups in society to pick a fight with the Scottish parliament”.

Nicola Sturgeon has now said that the Scottish government will “vigorously defend the legislation” in court. The next step is likely to be a judicial review.


The politics

Regardless of the complicated legal picture, the broad battle lines were clear yesterday: on the one hand, the UK government presenting itself as the defender of women and girls’ rights against the SNP’s overreach; on the other, the Scottish government calling the intervention an infringement on devolution for political reasons. “This is a UK government that sees an opportunity to stoke a culture war,” Sturgeon said. “In doing so, they’re undermining the Scottish parliament.”

It’s possible that the short-term interests of both parties can be served by this fight: the Tories get to tell culturally conservative voters across the UK that they will resist Sturgeon and the SNP over gender recognition reform, and the SNP gets to tell those who may disagree on this issue but are suspicious of the UK government’s intervention that it is defending democracy in Scotland – much safer political ground.

Libby has an excellent deeper analysis on these dynamics here. The majority of MSPs she has spoken to from all sides, she said, “are just weary that this debate is likely to drag on into the spring. And yet again, it will not include the voices of the people who are going to be directly affected. It will be a matter for constitutional lawyers and political posturing.”

“Sometimes people wrongly view every issue through the independence prism,” Libby added. “But I think in this case it’s right to say that it’s a perfect storm of culture war and the constitution.”

What else we’ve been reading

Julie Stewart. Jive Turkey dancefloor, Sheffield.
Julie Stewart. Jive Turkey dancefloor, Sheffield Photograph: © Barbara Wasiak
  • When it comes to behemoths of UK nightlife, names like the Hacienda or Shoom might come to mind. Daniel Dylan Wray delves into the legacy of a slightly less well known spot in Sheffield, Jive Turkey (pictured above), that blazed a trail for house music at a time when the city was overrun by racist door policies. Nimo

  • The admission that the Met’s failings over David Carrick were “a step back” for policing “doesn’t exactly cover it unless she’s talking about a step back into the abyss”, writes Marina Hyde. She argues that the idea that the Met should reform itself “is the last refuge of people ultimately interested in it staying much the same”. Archie

  • From comforting Freddie Mercury in his last days to cocaine-fuelled shenanigans with David Bowie, Tony King has led a whirlwind life with some of our best known rock stars. Alexis Petridis digs into King’s life, unravelling a tale of hedonism, glamour, grief and recovery. Nimo

  • What’s it like being a TV weather presenter as the climate crisis takes hold? Sam Wollaston writes fascinatingly about the meteorologists with “a front row seat at the worst show in the world”, and how their jobs became far more serious than they once imagined. Archie

  • As participation in religious spaces dwindles and affiliation rates continue to decline, is religion disappearing in America? Wendy Cadge and Elan Babchuck write in the Atlantic (£) that engagement in religion and all of its rituals is not going extinct – it is transforming. Nimo


Liverpool’s Harvey Elliott celebrates during the Emirates FA Cup third round replay match against Wolves.
Liverpool’s Harvey Elliott celebrates during the Emirates FA Cup third round replay match against Wolves. Photograph: Mike Egerton/PA

FA Cup | Liverpool secured a much-needed victory over Wolves in their FA Cup replay last night, with a stunning goal from Harvey Elliott (pictured above) leading them to a 1-0 win. TV viewers of the game were surprised when the BBC’s studio coverage was interrupted by pornographic audio - which host Gary Lineker later said had been playing from a mobile phone hidden in the studio as a prank.

Football | One of Britain’s richest people, Sir Jim Ratcliffe, has confirmed that his company is in the running to buy Manchester United. The 70-year-old billionaire had been coy about his ambitions to take over his boyhood club, but his company said on Tuesday that it had registered its interest with the bank running the sale.

Tennis | World No 1 Iga Swiatek and third-seeded Jessica Pegula remain on course for a semi-final meeting after the pair both powered into the last 32 of the Australian Open on Wednesday. Swiatek advanced with a resounding 6-2, 6-3 victory over Colombian Camila Osorio, while Pegula outclassed Aliaksandra Sasnovich 6-2, 7-6 (7-5).

The front pages

Guardian front page 18 January 2023

The Guardian has continued coverage of the case of PC David Carrick with, “Clamour for inquiry into officers who allowed rapist to stay in Met”. The Mail follows the same story under the banner: “Strip the rapist PC of his £22,000 pension”.

The Mirror has the latest on NHS strikes, saying “Bosses refuse nurses a fair pay deal but offer £40 an hour to those who cross a picket line. Idiotic”. As concerns over energy costs continue, the i leads with “Stop forcing families on to prepay meters, Schapps warns”. The Financial Times might have some good news on that front, reporting: “IMF outlook turns brighter as world copes with upheaval”.

The Telegraph says that “Trans law ‘could turn parents into criminals’”. The Times has an unusual lead, focusing on comments from the Food Standards Agency that sweet treat in the office should be treated like passive smoking, with the headline: “Don’t let them eat cake”

Finally the Sun leads with “Match of the wahey”, reporting, “Lineker drowned out by porn film groans as BBC studio pranked”.

Today in Focus

A vulnerable pensioner in dressing gown and mismatched woollen gloves tries to keep warm as fuel bills and living costs soar in the UK

Why are energy companies forcing their way into people’s homes?

Energy companies have been granted warrants to forcibly switch customers on to pre-payment meters. Alex Lawson tells Hannah Moore about the consequences for people struggling with their bills

Cartoon of the day | Martin Rowson

Martin Rowson cartoon for Opinion

The Upside

A bit of good news to remind you that the world’s not all bad

The Makanai: Cooking for the Maiko House.
The Makanai: Cooking for the Maiko House. Photograph: Netflix

The volume of filler content on Netflix can make it pretty difficult to use, as the amount of time finding a good TV show or film can often be as long as what you want to watch. But there’s no need to despair as the prominent Japanese director, Hirokazu Kore-eda, has brought a delightful new Japanese drama to the site, his first Netflix series.

The Makanai: Cooking for the Maiko House tells the fictional story of two 16-year-old girls who decide to leave school and move to Kyoto to train to be “maiko” or apprentice geishas, exploring the day to day life of in a Japanese geisha house and its kitchen. The nine-part series has been adapted from a popular Japanese manga and tenderly looks at mentorship, sisterly connection and the way food connects and soothes people. The show has been highly praised as a refreshing, joyful viewing experience.

Sign up here for a weekly roundup of The Upside, sent to you every Sunday

Bored at work?

And finally, the Guardian’s crosswords are here to keep you entertained throughout the day – with plenty more on the Guardian’s Puzzles app for iOS and Android. Until tomorrow.


Archie Bland

The GuardianTramp

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