The UK Government Blocking the Scottish Gender Recognition Act is an Attack on Trans and Migrant Rights

A racialised person holds up a sign in the trans flag colours reading 'Trans rights are human rights'. There are LGBTQ+ flags in the background

With the UK government blocking Scotland's Gender Recognition Reform Bill, what does this mean for trans communities and people seeking asylum? Jack Lilidh (She/He) reports. 

What is happening with the Gender Recognition Act?

Just before Christmas, the Scottish Parliament passed the Gender Recognition Reform Bill to an 88/33 majority. The bill would replace the Gender Recognition Act (GRA) to allow trans people to more easily change the sex recorded on their birth, marriage, and death certificates, and with the HM Revenue & Customs (HMRC), using a Gender Recognition Certificate (GRC). It doesn’t change sex markers elsewhere or restrict access to spaces. 

For the first time, the UK government has issued a Section 35 order (S35O) to block the Scottish bill from becoming law. 

The new Scottish government has powers over health and social care, local government, agriculture, fishing, forests, policing, the judiciary, amendments to taxation, and gender recognition. 

The word transgender was first used in the House of Commons in debates over the Scotland Act, which established the parliament in 1998. The UK government kept responsibility over international matters, defence, broadcasting, trade, immigration, taxation in general, most equality law, and constitutional questions, 

Section 35 of the Act sets out the veto power. Westminster can block a Scottish bill from becoming law if it believes it could be problematic internationally–with security and international obligations–or domestically–interfering with British laws. Alister Jack, Scotland Secretary of the British Government, has claimed more trans women with GRCs would interfere with equalities law.

How have people responded to section 35?

At least twenty protests were held across the UK and Ireland in response to the order. Every major Scottish city–Glasgow, Edinburgh, Dundee, and Aberdeen–as well as Orkney, Dublin, Leeds, Bristol, Nottingham, York, and Liverpool protested in the week following the announcement. Falmouth, Cambridge, Manchester, Gloucester, Lancaster, and Norwich held protests in the following weeks. Protests were held outside Downing Street the day after the announcement, the following day, and on the Saturday. 

“Workers aren’t stupid.” Heather Herbert was at the protest in Aberdeen. “We’re seeing exactly the same rhetoric over trans people as we saw in the 80’s over LGBT+ people.” 

Section 28, which prohibited the ‘promotion of homosexuality’ in local government, was introduced in 1988. “Accusations of grooming are now coming from the House of Commons. Miriam Cates MP claimed the new law would make it “vastly easier for a predator to get access to children.” The 1988 section followed unrest, with 27 million person-days of strike a few years before. In the two years following the bill, ambulance and postal services would strike, and the protested poll tax would come into force. “History doesn’t repeat itself, but it often rhymes,” said Herbert. 

Heather left Labour over their Scottish independence policy, in favour of the Scottish Green Party (SGP), which wants Scotland to leave the UK. The co-governing SGP cut ties from the Green Party in England and Wales over its transphobic policies. She, like many in Scotland, doesn’t believe the S35O will stand up to legal challenges. Around mid-January, Heather challenged a Sky News presenter, saying “When was the last time you had to show your birth certificate when you went to the toilet?”

The 2004 GRA insists that GRCs should only be asked for in very rare circumstances – never to access protection from discrimination. The 2010 Equality Act was written around this understanding and protects trans people without certificates. The 2010 act includes the duty for institutions to “promote good relations” between protected groups, and only allows for the exclusion of certain groups in very limited, justified circumstances. 

“I changed all my documents before moving. I was worried about my visa application.” Adrienne is a trans woman and has recently moved to Scotland. “I don’t have a GRC. I changed my birth certificate [in the USA] even though I didn’t want to.” She was at the recent rally in Glasgow. Staying in Scotland meant getting married for Adrienne. “Being able to transition abroad is a kind of escape hatch.” She was receiving healthcare in the US, where a gender-clinic system does not limit access to trans healthcare. “The Tories now seem to be trying to close it.” 

Kemi Badenoch, Equalities Minister for the UK government, announced that more GRCs from overseas will no longer be recognised. This may include the marriage certificates of some trans people. Adrienne is concerned. “It seems part of a broader effort to erase trans people and expel immigrants.”

Increasing surveillance of groups experiencing marginalisation

We spoke with trans people who have sought asylum in the UK. No-one felt capable of commenting for fear it may affect their case or status. Criticism for the Home Office from Scottish Politicians and the public came to a fore in 2021, when First Minister of Scotland Nicola Sturgeon instructed Police Scotland to stop assisting the Home Office with an ongoing, protested immigration raid in Glasgow. People with outstanding asylum claims are subject to an increasing degree of monitoring, with the Home Office discussing the use of GPS-tracking ankle braces. 

Nicola Sturgeon announced her intentions to challenge the S35O. Speaking to Journalists, she said that there is a “real public interest” in taking the order to court. “[It] can be used pretty much on the whim of the UK government any time they have a political disagreement with the Scottish government.” Kemi Badenoch and Alister Jack declined meetings with the Scottish government on the matter.

You’ve probably gathered from reading this piece that the legal rights of trans people and any quality of life afforded to trans people are threatened in the UK.

If you would like to show up for the trans community you can do the following:

 

This piece was written by Jack Lilidh (She/He). She’s trying to build a transfeminist praxis and will very happily talk about it. Tweets from @jacklilidh.