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17 January 2023

Will the gender reform battle boost support for Scottish independence?

Westminster’s veto has turned a debate over policy into one over Scotland’s power to govern itself.

By Freddie Hayward

Rishi Sunak’s government has used section 35 of the 1998 Scotland Act to block a Scottish bill to make it easier for people to legally change their gender. This power has not been used before.

The blocked bill would have allowed people to obtain gender recognition certificates from the age of 16 and without a diagnosis of gender dysphoria. The UK government argues that it would conflict with UK equality law, power over which is reserved to Westminster. The Scottish government disagrees. Keir Starmer has said that he has “concerns” about the bill, particularly about lowering the minimum age and the potential impact on single-sex spaces, but it is not clear whether the Labour leader supports the UK government’s decision. If he does, that sets him up for a conflict with his MSPs at Holyrood, most of whom voted in favour of the reform.

Nicola Sturgeon’s reaction – she called the decision a “full-frontal attack” on devolution – suggests her government will submit a legal challenge rather than amend the bill, setting up yet another devolution battle in the courts. The First Minister’s argument that blocking the bill undermines democracy neglects the fact that the Scottish Parliament’s authority ultimately derives from Westminster through the 1998 Scotland Act. It’s tricky to claim that using a provision contained in the very act that brought about devolution is an attack on devolution. The question is whether the UK government has correctly applied that provision – which the courts will probably decide.

In any case, what polling we have suggests the bill is unpopular in Scotland. A poll from YouGov last month found that 66 per cent of people in Scotland were opposed to reducing the minimum age from 18 to 16, for instance. The veto has, however, allowed Sturgeon to turn an unpopular policy into a symbol of Westminster overreach. The question for the SNP, therefore, is whether they want this issue to become a crucial battleground for Scottish independence.

[See also: Is Boris Johnson coming back?]

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