The United Kingdom: A Tug of War Between Scotland and England Over Trans People’s Rights

Last December, the Scottish Parliament passed a law aimed at facilitating trans people’s transition. This law was to allow self-determination, notably by removing the obligation for those concerned to obtain a medical diagnosis of gender dysphoria. However, on January 16th, 2023, the UK Secretary to Scotland announced that the UK Government would block this Bill and that it could not be enforced despite being passed in the Scottish Parliament. This news came as an electroshock to LGBTI+ politics, and in that sense, it is worth asking how this decision is representative of the current political difficulties in the United Kingdom on LGBTI+ rights issues.

Limiting the Rights of trans people in the United Kingdom

The issue of trans people’s right to change their personal records in the United Kingdom has come to light following a ruling by the European Court of Human Rights (ECHR). In a judgement dated July 11th, 2002^[1]CEDH, (July 11th 2022), Christine Goodwin c. UK, 28957/95, https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-5266%22]} the ECHR ruled that the UK violated Article 8 on the right to privacy and Article 12 on family law by not allowing legal recognition of a person’s gender change. Following this ruling, which was a first for the ECHR, the United Kingdom quickly complied with the decision and adopted the “Gender recognition act” in 2004^[2]United Kingdom, (2004), Gender Recognition Act, https://www.legislation.gov.uk/ukpga/2004/7/contents. This law has remained unchanged ever since. It allows, for people recognized as “suffering from gender dysphoria^[3]Article 2.1 a), (2004), Gender Recognition Act, https://www.legislation.gov.uk/ukpga/2004/7/section/2” to obtain a change in their personal records, a gender recognition certificate and the modification of any certificate stating their gender. In itself, this law was particularly innovative in 2004 and the United Kingdom then placed itself as a European leader in the field of trans rights.

However, upon reading the law, several points raise questions. First of all, the personal records change procedure is only possible for adults who must first obtain a diagnosis of gender dysphoria^[4]Article 1.1, (2004), Gender Recognition Act, https://www.legislation.gov.uk/ukpga/2004/7/section/1. This makes the procedure impossible for a large number of people and requires them to follow a care pathway. In addition, the person must attest to two years of “transition”^[5]Article  2.1.B, (2004), Gender Recognition Act, https://www.legislation.gov.uk/ukpga/2004/7/section/2. In other words, two years during which they are not legally recognized in their acquired gender but must publicly declare their transition, which can therefore expose them to violence and discrimination. Furthermore, despite the fact that a person is an adult, recognized as suffering from gender dysphoria and has lived in the acquired gender throughout a period of two years, their file must be studied by a gender recognition committee. This committee is made up of various professionals who can decide whether or not the person can obtain their gender recognition certificate based on the evidence presented^[6]Schedule 1 : Gender Recognition Panels : List of persons eligible to sit, (2004), Gender Recognition Act, https://www.legislation.gov.uk/ukpga/2004/7/schedule/1. 

The Gender Recognition Act, therefore, provides for a lengthy and relatively medicalized procedure (certificate, presence of the medical profession in the committees, etc.). Thus, in the face of criticism, in particular from LGBTI + rights groups^[7]Government Equalities office, (2020) Gender recognition act « What people said », … Continue reading, the United Kingdom had launched a consultation^[8]Nb: Public consultation is a way of improving democratic governance by helping governments consult their citizens on major public policy issues facing them. FAIRBAIRN C, PYPER D, (18 feb 2022), … Continue reading in 2018. The latter had been a great success with more than 100,000 responses. However, the English government remained relatively evasive about the use of the responses from the consultation^[9]TRUSS E, (22 sept 2020), Statement of the  Government Equalities Office Update, House of Commons Library, https://questions-statements.parliament.uk/written-statements/detail/2020-09-22/HCWS462. As for the Scottish government, it had already organised a consultation in 2017 then a second one in 2019, making it the largest consultation that Scotland has ever seen^[10]Minister for equalities and older people, (2022), LGBTI and gender recognition, Scottish Government, https://www.gov.scot/policies/lgbti/gender-recognition/. These consultations led to a draft reform in Scotland in March 2022^[11]The Scottish Parliament, (22 dec 2022), Gender Recognition Reform (Scotland) Bill, The Scottish parliament, https://www.parliament.scot/bills-and-laws/bills/gender-recognition-reform-scotland-bill which proposed, among other things, abolishing the diagnosis of gender dysphoria, lowering the age of access to the procedure to 16 years and reducing the time limit from 2 years to 3 months^[12]The Scottish parliament, Point 17 of Gender Recognition Reform (Scotland) Bill, The Scottish parliament, … Continue reading. This reform, supported by many LGBTI + associations^[13]Unknown, (2022), Why Does The Gender Recognition Act Need To Change?, Scottish Trans,  https://www.scottishtrans.org/our-work/gender-recognition-act-reform-2022/why-does-the-gra-need-to-change/, was passed in December 2022 by the Scottish Parliament. In response, England rejected the reform in January 2023. A decision which comes at a time when the United Kingdom has been criticised by the European Commission since 2020. In a report on trans people’s rights, the Commission found that the “GRA” law required intrusive medical requirements, and the refusal of gender change on the basis of evidence considered minor, such as a simple bill for the person’s “dead name^[14]Dead name: the first name assigned at birth to a child who has since changed it due to gender transition.”^[15]European Commission, (2020), Legal gender recognition in the EU: the journeys of trans people towards full equality, European Commission, … Continue reading. One can therefore wonder why England vetoed the bill in the first place. The Gender Act was already criticised by the European Union when England was still a member. The government could have accepted the reform in order to align itself with the law in force in its European neighbours.

The failure of the reform due to legal and, above all, political difficulties

The first point, advanced by England, is a legal problem. The Scottish Parliament can only pass laws that have an influence on the laws of the land^[16]United Kingdom, (1998), Article 35 of  Scotland act 1998, https://www.legislation.gov.uk/ukpga/1998/46/section/35. England then invoked section 35 of the Scotland Act 1998, which allows the British Secretary in Scotland to intervene and exercise his right of veto. This veto can only be invoked if the Scottish Parliament passes a law dealing with an area reserved to England^[17]Article 35 1.a), Scotland act 1998, https://www.legislation.gov.uk/ukpga/1998/46/section/35 or if the law passed has an “adverse effect” on UK laws stemming from the domains reserved to England^[18]Article 35 1.b), Scotland act 1998, https://www.legislation.gov.uk/ukpga/1998/46/section/35. It is on this last point that the Scottish British Secretary explained his veto. According to England, the Gender Act 2004 influences the United Kingdom Equal Opportunities Act 2010^[19]United Kingdom, (7 feb 2023), Policy paper : Statement of reasons related to the use of section 35 of the Scotland Act 1998, … Continue reading. With this in mind, if the Gender Act is amended, the 2010 law will have to be interpreted differently. However, equality issues are matters that fall within the domains reserved for the English parliament and not the Scottish one^[20]PYPER D, TORRANCE D, (16 feb 2023), The Secretary of State’s veto and the Gender Recognition Reform (Scotland) Bill,  House of Commons Library, … Continue reading. This is the first use of Article 35 by England to prevent the implementation of a law passed by the Scottish Parliament. It is a landmark decision^[21]United Kingdom (1998), Article 35 of  Scotland act 1998, https://www.legislation.gov.uk/ukpga/1998/46/section/35/NICHOLLS-REUTERS, H (27 jan 2023), What to Know About the Scottish Gender Reform Bill … Continue reading.

In accordance with this, LGBTI+ associations and left-wing political groups, beyond the legal question, are questioning the political divergences when it comes to framing the rights of trans people in the United Kingdom. As illustrated by researcher Stuart J. Turnbull-Dugarte^[22]MCMILLAN, F., TURNBULL-DUGARTE S.J., (3 nov 2022), “Protect the women!”, the Scottish reform has been fiercely criticised by “Trans-exclusionary feminist issue framing” groups^[23]Translation: Framing trans-exclusionary feminist issues also known as “TERF” and English conservative groups. During the ten months of parliamentary and media debates, certain anti-trans groups were particularly active, such as the For Women Scotland group^[24]Internet website, https://forwomen.scot, created in 2018 following the first GRA reform consultation. This group considers that gender corresponds to biological sex, that there are therefore only two sexes and that it cannot be changed. There is also the “Fair Play for Women (UK)” and the “LGB Alliance” or even “we need to talk”. All these groups have essentially the same message: for them, self-determination or the simplification of gender-change procedures for trans people leads to women being put at risk, particularly within non-mixed spaces reserved for them. For TERFs, trans women are men “who interfere with women’s legal and societal protections and focus on perceived compromise in collective rights^[25]“Qui s’immiscent dans les protections juridiques et sociétales des femmes et se concentrent sur le compromis perçu dans les droits collectifs” Trans-exclusionary feminist issue framing and … Continue reading [loose translation]”. While TERFs may seem like a minority, they have found a sympathetic ear among some Scottish and English ministers and MPs, as well as public figures^[26]For exemple : Joanna Cherry MP,  JK Rowling, Rosie Duffield : MITCHELLE J, ( 23 jan 2023), Scottish politicians and JK Rowling voice anger over ‘decapitate terfs’ sign at pro-trans rally in … Continue reading. These include politicians from the Christian and Catholic right^[27]PEARCE R., (2020), TERF wars: An introduction, The Sociological Review Monographs,  vol. 68(4) 677–698, DOI : 10.1177/0038026120934713, as demonstrated by the results of the reform vote where votes against came mainly from right-wing and conservative groups^[28]CHUDY E, (24 dec2022), Scottish Gender Reform: Who voted for and against, including three Tories who crossed party lines for trans rights, The pinks new, … Continue reading.

This rise of TERF groups and increasingly violent political discourse towards trans people has led some journalists to describe British feminism as an example of an anti-trans movement^[29]LEWIS, S, (7 feb 2019), How British feminism became anti-trans, The New-York Times, https://www.nytimes.com/2019/02/07/opinion/terf-trans-women-britain.html. Thus, beyond legal reasons, it is a political struggle between two ideologies and conceptions of feminism and transfeminism.

An increase in violence against trans people in the United Kingdom

The consequences of this veto are significant, as the reform would have provided better protection for an increasingly vulnerable population. Indeed, the reform and the veto come at a time when non-governmental organisations and LGBTI+ associations are increasingly concerned. According to the Williams Institute at UCLA School of Law^[30]The Williams Institute, The report, “Gender Identity Disparities in Criminal Victimization: National Crime Victimization Survey, 2017–2018”, The American Journal of Public Health, … Continue reading, trans people are 4 times more likely than cisgender people to be exposed to violence. With regard to the United Kingdom, the BBC estimates that in 2022^[31]NAGEST A, (6 oct 2022), Hate crimes recorded by police up by more than a quarter, BBC,  https://www.bbc.com/news/uk-63157965, hate crimes against trans people have increased by 56%, a much stronger evolution than crimes based on race or sexual orientation. In a report on violence against trans people in 2022, the NGO Galop^[32]BRADLEY C, (2020, Transphobic Hate Crime Report 2020, London: Galop,  https://galop.org.uk/wp-content/uploads/2021/06/Trans-Hate-Crime-Report-2020.pdf, estimates that trans people are particularly exposed to various forms of violence such as physical assaults, online, on the street, by TERFs or strangers, but also at work. Making it more difficult for these people to change their personal records exposes them even more to this endemic violence. ILGA argued in its 2022 report^[33]ILGA EUROPE, (2022), Annual Review of the human rights situation of lesbian, gay, bisexual, trans, and intersex people in Europe and Central Asia 2022, rainbow-europe.org,  … Continue reading that the United Kingdom’s biggest LGBTI+ and women’s rights issue is trans-identity. The debate is so intense that several members of the government panel on LGBTI+ issues have left their posts due to “the government’s growing hostility towards trans people^[34]“L’hostilité grandissante du gouvernement envers les personnes transgenre” ILGA EUROPE, (2022), Annual Review of the human rights situation of lesbian, gay, bisexual, trans, and intersex … Continue reading [loose translation]”.

If the English government seems increasingly hostile towards trans people, public opinion does not seem to share this position. Indeed, in Scotland the government estimates that “57% of respondents think it should be easier to obtain a gender recognition certificate^[35]“57% des personnes interrogées pensent qu’il devrait être plus facile d’obtenir un certificat de reconnaissance du genre”. Scottish Government, (2022), LGBTI and gender recognition, … Continue reading [loose translation]”. In England, 55% say “people should be able to identify as being of a different gender to the one registered at birth^[36]“Les gens devraient pouvoir s’identifier comme étant d’un sexe différent de celui qu’ils avaient enregistré à la naissance”. SMITH M, (20 juillet 2022), Where does the British public … Continue reading [loose translation]” and “40% say the law should allow people to change their legal gender^[37]« 40 % affirment que la loi devrait permettre aux gens de changer de sexe légal »SMITH M, (20 juillet 2022), Where does the British public stand on transgender rights in 2022 ?, … Continue reading [loose translation]”, but 23% remain uncertain^[38]SMITH M, (20 juillet 2022), Where does the British public stand on transgender rights in 2022 ?, … Continue reading. Thus, public opinion in both Scotland and England seems to want to help trans people in their efforts and, above all, are aware of the violence they are currently facing. Public opinion, therefore, seems more in tune with the Scottish reform than with current law.

The United Kingdom’s possible evolution on this issue thanks to the progressive laws of its European Neighbours

England’s veto on the Scottish Parliament is a strong legal decision but above all a politically controversial one. England had the opportunity to use Scottish law to move forward on this issue by passing progressive legislation and once again become the leader it had been on trans rights. A stance that would have been all the more welcomed as anti-trans movements are on the rise in the country, with an increase in violence against trans people. Scotland has been progressive and other countries like Spain have followed suit by passing the “trans law” in February 2023 allowing for gender self-determination. Despite the rising violence, some countries of the European Union are fervent defenders of human rights, but it remains to be seen whether England will end up following them.