Mick Hartley

Some interesting analysis on the effect of Scotland's gender law on the rest of the UK:

Single-sex girls’ schools in England will have to admit biologically-male pupils under Scotland’s proposed new gender recognition laws, says a new report.

Girls’ schools would be guilty of discrimination under sex equality laws if they refused entry to biologically male teenagers who had been granted female gender recognition certificates from Scotland, according to the study by the think tank Policy Exchange published on Thursday.

Other single-sex spaces such as hospital wards, changing rooms and toilets and associations would also face the same requirement to admit biological males or females granted certificates in Scotland or risk breaching the Equality Act.

Scotland’s proposed new law allows people to change their legal gender without a medical diagnosis of gender dysphoria in as little as three months. It covers schoolchildren by lowering the minimum age at which people can apply to change gender from 18 to 16.

Dr Michael Foran, the author of the report, said recent court rulings combined with the new legislation meant the bill would fundamentally change the nature of the Equality Act, not only in Scotland but across the United Kingdom.

He said this was another reason why the UK Government could – and should – block royal assent for the Scottish bill to prevent it from becoming law. This can be done by invoking a section 35 order under the Scotland Act 1998.

The report is backed by Lord Keen, a former advocate general for Scotland and justice minister, who criticised the Scottish parliament for the impact the legislation would have on UK equality laws.

“It would not only be impractical but constitutionally improper for the UK Government to permit a devolved legislature to enact a provision that had a material impact upon the operation of the law throughout the United Kingdom,” he said.

Stephen Daisley at the Spectator:

If Foran’s analysis is correct, Sturgeon’s bill will, firstly, fundamentally transform the operation of UK law; secondly, effectively impose on England, Wales and Northern Ireland legal changes only ever voted for by the Scottish parliament; and, thirdly, will do so with minimal safeguards that may prove wholly unenforceable. This turns the matter into a serious legal and political problem for the Conservative government. Not only would they be forced to accommodate changes in the law that neither they nor the general public support, they face the prospect of being held accountable for the potential consequences of another government’s legislation….

The decision whether to issue a Section 35 order is at least as much about politics as law. From a political standpoint, I cannot see how ministers can possibly avoid it. Sturgeon’s bill is too sweeping, the potential fallout too significant, and the issues at stake too fraught. Failing to make a Section 35 order might be as rash and reckless as the legislation in question. 

The UK government is meant to govern the whole UK and to protect the rights, interests and safety of everyone living there. To allow the Scottish parliament to impose its will past Gretna Green, especially on such a controversial subject, would be an abdication of ministers’ duty to the country. There is no way around it. Section 35 it will have to be.