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Westminster may resort to using powers that it has never wielded before as the row with Scotland over its controversial gender reforms bill escalated. 

The Gender Recognition Reform (Scotland) Bill was passed yesterday to jeers of ‘shame on you’ in Holyrood.

The Scottish Parliament voted to let trans people self-identify without a medical diagnosis of gender dysphoria. And the legislation lowers from 18 to 16 the minimum age that Scots can legally change gender.

It also slashes the timescale for adults obtaining a gender recognition certificate from two years to just three months. The vote puts MSPs on a constitutional collision course with Westminster as UK ministers consider the ‘nuclear option’ of stopping the bill from going for royal assent. 

Supporters of the For Women Scotland and the Scottish Feminist Network take part in a demonstration outside the Scottish Parliament in Edinburgh

Supporters of the For Women Scotland and the Scottish Feminist Network take part in a demonstration outside the Scottish Parliament in Edinburgh

Women's rights campaigners protested as the Scottish parliament conducted the final vote on the Gender Recognition Reform Bill

Women’s rights campaigners protested as the Scottish parliament conducted the final vote on the Gender Recognition Reform Bill

Under the Scotland Act, the UK Government can challenge devolved legislation if it feels it affects national security or reserved matters. 

Gender recognition is a devolved matter, but the Government is concerned about the impact of the Bill on equalities laws which are the preserve of Westminster.

The Bill has also provoked fears that abusive males could take advantage of the new quicker and easier system to change gender with critics, including the author JK Rowling, warning that ‘all a man needs to “become a woman” is to say he’s one’.

Any action to block the legislation, expected to come into force next year, would be unprecedented – and would likely be subject to judicial review. Ministers have four weeks to decide whether to intervene.

Such an attempt would probably also be jumped on by First Minister Ms Sturgeon’s independence push. The Scottish Government vowed to challenge any attempt to stop the Bill, which had the backing of Scottish Labour, becoming law.

A spokesman said: ‘The Bill as passed is within legislative competence, and was backed by an overwhelming majority, with support from all parties.

‘Any attempt by the UK Government to undermine the democratic will of the Scottish Parliament will be vigorously contested by the Scottish Government.’

A women rights protestor reacts after the bill passes, by lifting up her skirt and revealing what appears to be a fake vagina

A women rights protestor reacts after the bill passes, by lifting up her skirt and revealing what appears to be a fake vagina

Supporters of the For Women Scotland and the Scottish Feminist Network outside Holyrood

Supporters of the For Women Scotland and the Scottish Feminist Network outside Holyrood

A protester dressed as a suffragette stands outside parliament during the protest against the bill

A protester dressed as a suffragette stands outside parliament during the protest against the bill

One protester's humorous placard likened First Minister Nicola Sturgeon to the Grinch

One protester’s humorous placard likened First Minister Nicola Sturgeon to the Grinch

Joanna Cherry MP speaks outside Holyrood against the Gender Reform Bill passed earlier today

Joanna Cherry MP speaks outside Holyrood against the Gender Reform Bill passed earlier today

Scottish Secretary Alister Jack warned that he was considering blocking the Bill completely. 

Mr Jack said: ‘We share the concerns that many people have regarding certain aspects of this Bill, and in particular the safety issues for women and children.

‘We will look closely at that, and also the ramifications for the 2010 Equality Act and other UK-wide legislation, in the coming weeks – up to and including a Section 35 order stopping the Bill going for royal assent if necessary.’

A UK government source said the possibility of stopping the bill reaching royal assent was: ‘The nuclear option, if you like,’ The Guardian reported.

They added: ‘The ideal, of course, is that we can point out to the Scottish government all the constitutional issues the bill creates as it stands, and they can amend it before it’s fully enacted. But we’re looking very seriously at all possibilities.’ 

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Kemi Badenoch, minister for women and equalities, has raised concerns about the impact of the legislation.

A source close to her said she ‘didn’t believe the Scottish Government had considered the full impacts of this Bill – particularly on women and girls’.

The insider added: ‘She shares the strong concerns raised by the Equality and Human Rights Commission, the UN special rapporteur on violence against women and girls, and other civic groups and ministers regarding the impact this Bill will have on the functioning of the Equality Act, which is designed to protect all UK citizens.’

Demonstrators organised by the For Women Scotland group gather outside Scottish Parliament as the final vote took place

Demonstrators organised by the For Women Scotland group gather outside Scottish Parliament as the final vote took place

No To Self ID demo outside the Scottish Parliament as the final vote of the Gender Recognition Reform Bill

No To Self ID demo outside the Scottish Parliament as the final vote of the Gender Recognition Reform Bill

Supporters of the For Women Scotland rally outside Holyrood earlier today as the vote took place

 Supporters of the For Women Scotland rally outside Holyrood earlier today as the vote took place

There were cries of 'shame on you' as MSPs passed the Gender Recognition Reform (Scotland) Bill by 86 to 39 this afternoon, and the parliament was briefly suspended

There were cries of ‘shame on you’ as MSPs passed the Gender Recognition Reform (Scotland) Bill by 86 to 39 this afternoon, and the parliament was briefly suspended

Today Tory leader Douglas Ross laid blame for its failure directly at Ms Sturgeon's door, saying: 'The government stopped that amendment by a single vote. The First Minister's own vote means a man standing trial for rape can claim they're a woman and force a victim to call them ''she.'' Why did the First Minister vote for this?'

Today Tory leader Douglas Ross laid blame for its failure directly at Ms Sturgeon’s door, saying: ‘The government stopped that amendment by a single vote. The First Minister’s own vote means a man standing trial for rape can claim they’re a woman and force a victim to call them ”she.” Why did the First Minister vote for this?’

SNP Minister Ash Regan speaks at the For Women Scotland and the Scottish Feminist Network demonstration outside the Scottish Parliament in Edinburgh

SNP Minister Ash Regan speaks at the For Women Scotland and the Scottish Feminist Network demonstration outside the Scottish Parliament in Edinburgh

Rape victims ‘could have to use attacker’s new pronouns in court’

Rape victims will need to call their attackers by female pronouns in court if they change gender, MSPs have warned.

Concerns have been raised that a man who rapes a woman and then changes gender before a trial would then have to be referred to as ‘she’ or ‘her’.

Scottish Conservative community safety spokesman Russell Findlay, who has sought clarification on the issue from the Justice Secretary and senior Police Scotland officials, said: ‘It sounds absurd, ludicrous and unimaginable, but the answers that I got were worryingly vague and completely unconvincing.’

Nationalist MSP Michelle Thomson, who previously spoke about her personal experience of rape as a teenager, failed in a bid to ensure that gender recognition certificate applications are paused if an applicant has been charged with sexual assault and would not be granted until the case is disposed of.

In the vote at the Scottish parliament, 61 MSPs voted for and 61 against, only for the amendment to fall on the casting vote of Deputy Presiding Officer Liam McArthur.

Mrs Thomson told MSPs: ‘During stage 2, and again today, Russell Findlay pointed out that a woman could end up having to refer to her attacker as ‘she’.

‘Do members in the chamber understand how that could represent an opportunity for abusers to exert power and control over their victims?’

Social Justice Secretary Shona Robison said the Government had committed to regulations to amend the sex offender notification requirements so that people who are on the register would be required to notify police of the details if they applied for legal gender recognition.

She added: ‘That will mean additional information will be available to help to identify an individual and inform their subsequent management under the multi-agency public protection arrangements.

‘That will allow action to be taken either in relation to the application itself, if necessary, or as part of the broader police role in managing the registered sex offender population.’

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Ahead of the votes, Miss Robison wrote to three MSPs, including Mrs Thomson, asking them to withdraw proposed changes to the legislation or risk delaying its passage through parliament.

She reportedly warned them that their amendments would put the Bill at ‘serious risk’ of being outwith Holyrood’s competence, and said the changes risked being incompatible with the European Convention on Human Rights.

 

The legislation sets Scotland apart from the rest of the UK – where applicants for a gender recognition certificate (GRC) must be 18 or over and have a diagnosis of gender dysphoria. Obtaining one allows an individual to change their gender on legal documents such as their birth certificate, but it can also affect their entitlements to benefits and pensions.

The Equality and Human Rights Commission, which argued the existing legal framework had the correct balance, called for clarity on the cross-border implications of the law.

It said: ‘We urge the Scottish and UK Governments to work together to minimise the risk of uncertainty around the potential cross-border implications we previously raised with them, as a matter of urgency now the Scottish Parliament has passed these reforms.’

The commission said it ‘might be difficult for trans people with Scottish GRCs to be certain of their legal status and rights’ and there could be challenges for employers and service providers in England and Wales.

It is unclear whether any GRCs issued in Scotland would be recognised in England.

The Bill, which passed by 86 votes to 39, has been one of the most controversial in Holyrood since devolution, and debates have been hit by protests.

Opponents interrupted proceedings yesterday as social justice secretary Shona Robison brought the debate to a close. There were cries of ‘shame on you’ from the public gallery after the final vote.

Ms Robison told MSPs: ‘Trans rights are not in competition with women’s rights, and as so often before, we can improve things for everyone when those discriminated against act as allies, not opponents.’

Ms Sturgeon’s government has insisted the legislation will not affect the Equality Act, which allows for trans people to be excluded from single-sex spaces such as changing rooms.

But she has faced opposition from her own party and from women’s rights campaigners.

Nine SNP MSPs rebelled, including former minister Ash Regan who resigned over the issue. Two Labour MSPs voted against their party whip.

Tory MSP Rachael Hamilton said the Bill had ‘shown this Parliament at its worst’.

She added: ‘In the rush to make the process a little easier for trans people, the Government is making it easier for criminal men to attack women. That’s the problem here.’

Miss Hamilton also said the gender Bill, which she claimed would be a ‘legacy issue for the First Minister’, would ‘let criminal men exploit the system’ and put women in jeopardy when in single-sex spaces.

Labour MP Rosie Duffield, a staunch defender of single-sex spaces for women, said they had now ‘lost the fundamental right to always expect protection’.

She added: ‘The women who will be most affected are those women in prison, women who are the victims of sexual violence and those already most vulnerable, powerless and at risk. It is the most basic job of all politicians to protect those people.’

Reem Alsalem, the UN’s special rapporteur on violence against women, told members of Holyrood’s equalities committee the plans could see violent men exploit loopholes ‘to get into women’s spaces and have access to women’.

What is in Scotland’s gender law? 

The Scottish Parliament has passed a law which reforms the gender recognition process in Scotland.

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The Gender Recognition Reform Bill passed after lengthy debates at Holyrood, often amid divisive political rhetoric.

It has been discussed for years, with strong opinions for and against changing the 2004 Gender Recognition Act.

Here are some of the key points, and what comes next.

What does the Bill do?

The main element of the Bill is to make it easier for trans people to obtain a gender recognition certificate (GRC) by removing the requirement for a diagnosis of gender dysphoria.

It will also lower the minimum age for applicants from 18 to 16 and drop the time required for an applicant to live in their acquired gender from two years to three months – six for people aged 16 and 17 – though with a subsequent, three-month reflection period.

What changes have been made?

The Bill has been amended as it moved through Holyrood.

At stage two, it was announced 16- and 17-year-olds would need to live in their acquired gender for six months rather than three before applying for a GRC.

It was also announced there will be new statutory aggravation to the offence of making a fraudulent application for a GRC.

At stage three, MSPs backed a change tabled by SNP MSP Gillian Martin which means anyone subject to a sexual harm prevention order or sexual offences prevention order will have to undergo a full risk assessment before being granted a GRC.

What do its supporters say?

Campaigners in favour of the Bill say a move to make trans peoples’ lives easier is long overdue.

A group of LGBTQ+ groups recently issued a joint letter saying the Bill is a ‘historic opportunity to continue Scotland’s journey towards full social and legal equality’.

They disagree that an expansion of trans peoples’ rights comes at the expense of women’s rights, saying the Bill will have little impact outside the trans community.

Nicola Sturgeon, whose government launched the Bill, said the current system of medical diagnoses was ‘intrusive, traumatic and dehumanising’.

What do opponents say?

Those in opposition to the Bill say it will impact the safety of women and single-sex spaces.

They say there are insufficient safeguards to protect women and girls from predatory men, raising concerns about environments like women’s prisons.

Protests inside and outside the Scottish Parliament have called on MSPs to vote down the Bill.

Some oppose the Bill on religious grounds, saying it will blur the distinction between men and women.

How have politicians reacted?

Unusually in Scottish politics, opposition to the Bill has cut across party lines.

In October, the SNP’s Ash Regan quit the government in protest at the Bill, as nine of the party’s MSPs either abstained or voted against stage one of the Bill.

Others in the SNP, like MP Joanna Cherry, have had longstanding opposition to the process of gender recognition reform.

Most Conservative MSPs are opposed to the Bill, with exceptions being Jamie Greene and Dr Sandesh Gulhane.

Scottish Labour are largely in favour, but some MSPs appear to have been in the opposition camp during debates on the amendments.

Scottish Green and Lib Dem MSPs are in favour of the new law.

What comes next?

Once the Bill has passed at Holyrood, attention will turn to how the UK Government reacts.

This is because UK equalities minister Kemi Badenoch has said she has concerns about legal divergence between Scotland the rest of the UK.

Any dispute between the two governments could end up in court. In the absence of any challenge, the Bill would receive royal assent, and become law.

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