Tensions High as UK Rejects Scottish Gender Bill
Supporters of the Gender Recognition Reform Bill protest outside the Scottish Parliament. Source: for Photo SkyNews
On December 22nd of 2022, the Scottish Parliament overwhelmingly (86 to 39) voted in support of its Gender Recognition Reform Bill. The bill amends the Gender Recognition Act of 2004, which allowed individuals with gender dysphoria to change their legal gender status. The 2022 reform bill is intended to make this process simpler by removing the need for a psychiatric diagnosis of gender dysphoria to acquire a Gender Recognition Certificate and by extending the ability to 16- and 17-year-old persons. The bill has been hailed as a “tremendous step forward for trans rights” by proponents, but a mistake “making it easier for criminal men to attack women” by opponents.
About a month after its passage, the bill was abruptly blocked by the UK’s Scottish Secretary of State. Citing a provision in legislation granting the establishment of the Scottish Parliament, the Scotland Act of 1998, the Scottish Secretary announced that the UK government in Westminster will be halting the bill’s implementation. This will be the first time the UK government has blocked a bill from going for royal assent in the history of the modern Scottish parliament. In the UK, royal assent is the process by which the monarch “formally agrees to make [a] bill into an Act of Parliament (law),” following its passage in both parliamentary houses. Now, many wonder what this will foretell about ongoing Scottish-UK tensions and the preponderance of calls for Scottish independence.
The controversy surrounding the gender bill is only the most recent example of the tenuous relationship between Scotland and the UK. At times fraught with complexities, this contentiousness stretches as far back as the 13th Century. Despite this, the Scots were able to affirm their sovereign independence up until the official unification of Scotland and England in 1707. Scotland is a constituent country within the United Kingdom. Although the UK government in London remains the primary level of governance on cross-border issues such as national defense, the process of devolution has granted Scotland a degree of autonomy on legislative policymaking. In general, these powers lie at the more localized area.
The roots of Scottish discontent, then and now, are generally grounded in what the Scots contend to be interference by an external colonial power. In light of this history, the moniker of a United Kingdom is one of aspirational complication. Even going back to the days of unification, there have been calls for independence, or, in the least, the granting of some power back to Scotland. Eventually, in 1997, a Scottish referendum was overwhelmingly supported by 74 percent of the vote. Two years later, the first Scottish Parliament of the modern era was seated.
While there have been a few instances of armed revolts by the Scots in the distant past, unlike the Irish-UK experience, most modern conflict has been in the way of institutional politics. Still, there remains a strong current of Scottish nationalism favoring some level of autonomy. To contextualize this moment in time, it is best understood in relation to other recent events.
In 2014, with the permission of Westminster, Scotland voted on an independence referendum. The measure subsequently failed with a vote of 55 to 45. Two years later, a UK-wide referendum on European Union (EU) membership, Brexit, resulted in a very narrow vote in favor of the UK leaving the EU – 52 to 48. Scotland however, largely supported remaining in the EU, with 62 percent voting in favor. In light of this, Nicola Sturgeon, leader of the Scottish National Party (SNP), Scotland’s majority ruling party and leading proponent of Scottish self-rule, floated the idea of a second independence referendum. In response, the UK’s Supreme Court issued a ruling that the Scottish Parliament cannot hold another referendum without the approval of Westminster. To this, Sturgeon proclaimed that “Scottish democracy will not be denied.” The most recent parliament elections in Scotland likewise raise questions about broader Scottish sentiments. In 2021, of the major parties, the only ones to gain seats in parliament were the SNP and the Greens. Notably, these are the two parties that represent the most ardent support for independence.
Given these recent developments, does Westminster’s blocking of the gender bill change the dynamics at play between Scotland and Britain? Does this represent a watershed moment for the two, escalating an already tenuous relationship? To better understand the intricate nature of Scottish-UK relations, I recently spoke with Dr. Liesbet Hooghe, the W.R. Kenan Distinguished Professor in UNC’s Political Science department, and with a Scottish exchange student here at UNC, Daniel Holland. Dr. Hooghe is a comparative politics expert on multilevel governance, with particular focus on the European region, and much of her research utilizes community, social, and group variability. Daniel is an exchange student in the Transatlantic Masters Program.
I asked Dr. Hooghe about the logistical nature of the multilevel governing experience between Scotland and the UK and how this was initially set up, including how power sharing exists. She explained that “There really wasn’t much until the 90’s with the establishment of the Scottish parliament” and referred to the legislative language of the division of powers. In accessing the listed powers, she agreed that while many seemed intuitive, the language used is very broad. Much of the reserved powers listed for the UK encompass virtually all governing areas. For example, she noted “parts of… media and culture policy” as a particularly broad language.
When asked about this particular experience with Scotland’s gender bill, she answered that the Secretary of State of Scotland “may refuse to submit a bill for royal assent only if he/she has reasonable grounds to believe that the bill would be incompatible with international obligations or the interests of defense or national security.” In light of this, I noted that the bill was reportedly intended to bring Scotland more in line with international human rights obligations. Dr. Hooghe, however, further explained additional language with respect to the Secretaries’ power to block legislation – “…or if it applies to reserved matters, and the reserved matters listed in the legislation are numerous and broad.” This, she explains, is where Westminster has much more flexibility in their authority.
Still, even though Westminster may have the ability to obstruct Scottish legislative power in some way, I question the impetus of this move. I asked Dr. Hooghe about a potential justification from Westminster as to why this action was taken. Dr. Hooghe, likewise, seemed puzzled on the legal grounds of this action, “Where are the externalities [to the bill]?” She wonders, perhaps, about the National Health Service (NHS), and whether their justification is that this bill would affect the way care is provided. Moreover, given the shared history along with more recent events, this action seems even more perplexing. It seems perplexing as to why the UK would do something to further antagonize Scottish leaders. To this, Dr. Hooghe squarely implicates politics, “It’s purely symbolic… pandering to a shrinking Conservative base,” even alluding to polarizing culture wars all too familiar in the U.S.
Turning away from the question of why and how this action occurred, I then asked Dr. Hooghe to contextualize this in relation to other recent moments in the Scottish-UK relationship and what this foretells about the future.
When discussing the failed 2014 Scottish independence referendum, even she acknowledged the nuance involved. She explained, “This is another murky area… nowhere does it [the referendum] explicitly say that this [independence] would happen. This is very different from the Spanish situation with Catalonia, for example.” Indeed, its language simply asked should Scotland be an independent country. More recent polling has even suggested a slight decline in support for independence. Dr. Hooghe also offered additional insights into this dynamic as well. She explained that while there are certainly strong nationalist sentiments in Scotland, “Scottish nationalism is civic rather than ethnic… there’s no real linguistic difference [between Scotland and the UK], and that has potentially huge implications for what it means at the interpersonal level.” She also mentions the labor market in the region – “In terms of the job market… most of the jobs are to the south.” She contends that this is a very different dynamic compared to other regions, such as Catalonia and Quebec, suggesting additional ties between Scotland and the rest of the UK.
At the end of our conversation, I asked Dr. Hooghe to do the impossible: given all of the different features of an oftentimes tenuous relationship between Scotland and the UK, what does this recent action on the part of Westminster mean for the future of Scottish-UK relations? I likewise question whether this move would influence public support for independence. With squinted eyes and a sigh, she offers, “I would guess it would to a degree.” However, she adds, “My gut sense is that a lot of the exclusive Scottish nationalists are actually pretty traditionalist, so that it wouldn’t be out of intrinsic support for this bill but just the principle and the precedent of having to bow to Westminster.”
Dr. Hooghe’s point here is similar to that of Daniel’s when asked about public opinion in Scotland regarding this bill in particular. He said that, while this bill received significant bipartisan support across party lines, there is an interesting dynamic within the SNP. He agreed that there are some traditional SNP members that are either skeptical of the gender issue at the heart of the reforms, or are outright opposed. Still, he also says that there is a contingent of Scottish nationalists that want independence “no matter the means, even if it be this,” and many others that would grow more sympathetic if this continues. For Daniel, “the trends'' become important, “if this were to continue, there would be more support.”
The threat of precedent that Dr. Hooghe alludes to is precisely the same sentiment that Daniel echoes in many ways. When asked about a potential breaking point, Dr. Hooghe says that this would most likely entail “trespassing on something valuable to Scottish identity.” She referenced how the education and legal systems have continuously been important to Scotland and encroachments in these areas – for example – could be seen as going too far. In addition, the blocking of “an issue that has more widespread intrinsic support… would confirm this precedent.”
Essentially, Dr. Hooghe is careful to point out that breaking points are never about one particular incident. Instead, it is about the culmination of many events over time. To this, she agrees, “correct… and this can be the product of cumulative accidents – intentional or unintentional.” She even goes further to say, “What is happening in Westminster is utterly senseless and is purely pander to their shrinking base.”
With tensions ongoing and possibly escalating, the question becomes whether the UK can take reparative steps on behalf of Scotland. For example, some observers contend that the very establishment of the modern Scottish parliament in 1999 was a way for the UK to stymie calls for independence and appease the Scots. Given this, perhaps additional measures for the devolution of power back to Scotland would serve as a strategic olive branch. In response, Dr. Hooghe seemed in agreement and skeptical at the same time, “This current government is clearly not in the mood to do that, but I would expect that could be a strategy, the wise strategy, but I’m not expecting a radical move.”
Here, she honed in, on what she called, the spirit of reforms that created Scotland’s parliament. She contends, “I think the spirit of the 99’ reform was much more generous than the way the current government interprets it. To his credit, Cameron applied that generous spirit in not blocking that referendum… but this Conservative party is very different.” Dr. Hooghe compares the Scottish situation to that of other regional disputes – “while things are far from settled, at least there is a stronger grounding in written contracts… but in this case [Scotland], so much depended on the spirit, the informal agreement… this is different than in Catalonia and Flanders.”
Dr. Hooghe and Daniel both agree that there is still much to develop for Scottish-UK relations. Indeed, only time can determine the future of this contentious relationship. As Dr. Hooghe points out, “There are clearly deals to be made,” but as she and Daniel both contend, the possibilities of anything fruitful happening in the foreseeable future is rather questionable. Daniel, a proud Scottish nationalist, went as far as contending, “While I certainly want an independent Scotland, I fear that I will never see it in my lifetime.” It appears that, in many regards, the status quo marches on, leaving almost everyone unsatisfied.