Scottish Government: SNP has given up fight for trans rights

The Scottish Government has opened itself up to the claim that it will not fight tooth and nail for trans rights – after ministers confirmed it will not appeal the Court of Session ruling the UK Government acted lawfully to veto the gender recognition reforms.

The decision not to fight the judgement has sent out a message to the LGBTQ+ community, whether true or not, that their rights are not worth taking to the highest court in the land – as was a bid for Holyrood to hold its own referendum on independence.

LGBTQ+ rights are already being diminished and are under threat from an outgoing UK Government that is becoming increasingly desperate to launch culture wars to shore up support from right-wing voters, and trans people, ridiculously, are being seen as fair game.

When the gender recognition reforms were discussed and scrutinised in great depth and detail this time last year, the Scottish Government insisted that introducing the legislation was crucial to stand up for trans rights and give transgender people dignity in the process of obtaining a gender recognition certificate – something lacking under the current regime.

But now, SNP ministers appear to have moved beyond this argument, instead insisting that trans people will benefit from improved healthcare services. Why the two cannot co-exist is pretty baffling stuff from a party that has, up until now, proudly stood by the need for the legislation. That need for the legislation has been barely mentioned since Humza Yousaf took office.

Scottish Trans said it was “bitterly disappointed” that the Scottish Government is not appealing the court ruling.

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The Scottish Greens are likely, behind the scenes, to be fizzing that the gender recognition reforms are not being fought for through every possible avenue.

The party’s equalities spokesperson, Maggie Chapman, acknowledged that “many trans people will feel let down and hurt” by the Scottish Government’s decision not to appeal the ruling.

The Scottish Government is fair to point the finger at the UK Government to some degree, but this is its own mess to figure out.

A lack of fight in appealing the decision not only sends a message to the trans community that their rights are not worth battling for, no matter the cost, but also potentially sets a precedent for the inevitable next constitutional stand-off with Westminster.

'LGBTQ rights are already being diminished and are under threat from an outgoing UK Government; (Image: Newsquest)
Social Justice Secretary Shirley-Anne Somerville has pointed to an “emerging pattern of interference in devolved matters” by the UK Government and there is merit in this argument. Whether that interference is justified is another thing.

Public law professor Aileen McHarg has warned that the decision not to appeal “could have seriously deleterious effects on the autonomy of the Scottish Parliament within its sphere of competence”.

She has also, quite alarmingly, pointed to an acceptance that Westminster can just veto laws UK ministers have concerns over could help to “encourage the trend of forum shifting to Westminster by those who have lost political debates at Holyrood”.

The Section 35 order used by Alister Jack to strike down the gender recognition reforms has only been done once in the history of devolution, but there is now case law for its use – it has been tested in the courts and without an appeal being lodged, it is pretty robust. Although another row could result in a Supreme Court appeal.

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This mechanism was part of the devolution settlement for a reason – several avenues can halt devolved laws encroaching on reserved matters.

We know this because the UK Government took Holyrood’s UN Convention on the Rights of the Child Bill to the Supreme Court with judges agreeing it would require parts of the Scotland Act to be rewritten.

It has taken the Scottish Government 996 days to get its watered-down and now competent legislation approved after the initial Bill was backed by MSPs.

These measures are built into devolution for good reason, but they are used at the will of the UK Government – and under the current administration at Westminster, they have been used with more ease.

Attention is now turning to the likely next UK Government – Keir Starmer’s Labour party.

The Scottish Government is hedging its bets that Sir Keir will be more open to allowing the gender recognition reforms to become law in Scotland – it is for that reason that ministers are not redrawing its plans and leaving them in limbo on the statute book.

Scottish Labour backed the gender recognition reforms but Sir Keir has, as part of his relentless campaign to appeal to the centre ground in England, toned down any plans to reform gender recognition services.

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It remains unclear which version of Sir Keir will emerge once he is in power.

If the next prime minister doesn’t want to get involved in the row – bearing in mind doing nothing is the easy option – then if the Scottish Government is serious about modernising gender recognition services and improving trans rights, it will have to come to terms with doing so with the blessing from whoever holds the keys to Downing Street.