50.50: Analysis

Can the UK survive Westminster’s attack on trans rights in Scotland?

LGBTIQ activists across the UK are rethinking their place in the union after Sunak blocked new Scottish legislation

Adam Ramsay
Adam Ramsay
17 January 2023, 2.14pm

People take part in the March for Trans Equality to the Scottish Parliament, in Edinburgh, on 5 September 2022

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Jeremy Sutton-Hibbert/Alamy Live News

“Before this situation, I was concerned that a lot of people who pushed for independence as their main priority had largely turned a blind eye to a lot of the problems within Scotland, and viewed independence as a panacea,” said Esme Houston, an Aberdeen-based queer activist.

But with the UK government acting to block Scotland’s Gender Recognition Reform Act, which would make it easier for trans people to correct the gender on their birth certificates and other official paperwork, she feels differently.

“Now, I understand that independence is the only way to achieve [progressive] goals in the face of a highly conservative UK government,” she explained.

Like all of the LGBTIQ activists openDemocracy has spoken to in the past 24 hours, Houston is particularly frustrated by UK Labour. The party failed to oppose Rishi Sunak’s decision to block the legislation, despite Scottish Labour backing the bill in Holyrood.

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She said: “If Keir Starmer is also in favour of blocking the bill in the UK Parliament, that’s even more concerning – the Tories and Labour are the only parties capable of governing given the UK’s outdated first-past-the-post system.

“They are undermining Scottish and trans people’s autonomy – the only way to get what we need is to sever ourselves entirely from the UK.”

Speaking yesterday, Starmer said he had “concerns” about the Scottish legislation, particularly about its lowering of the age at which a person can change their legal gender to 16.

Celebrity ceramicist, AJ Simpson, 23, who won Channel 4’s ‘The Great Pottery Throwdown’ in 2022, first heard the news on the radio when they were heading to the studio.

“It really upset me for the whole rest of the day, the next few days,” AJ, who is non-binary, told openDemocracy. “Nicola Sturgeon described it as very dehumanising, I think that’s right. It’s not very nice.”

AJ added that they are “proud of the Scottish government’s support of the bill”, which they say “will make such a positive difference in people’s lives”.

The new law would bypass the often lengthy waiting lists for medical diagnosis of gender dysphoria, which is currently required before paperwork can be updated.

AJ said: “I was lucky enough that I could afford to pay for a private diagnosis, but it’s three years on the NHS to get diagnosed with gender dysphoria. Waiting,” they added, “can have such a horrible impact on people’s mental health.”

They said they “didn’t really have strong feelings either way” about independence before this – they were too young to vote in 2014. But, they added, “it’s things like that that make me lean more towards the side of independence – decisions that will improve people’s lives and make the world a better place are then seemingly blocked for no reason, or reasons that aren’t very well founded.”

AJ added: “I just think that for trans and non-binary people, things are hard enough as it is to figure out who you are. There’s a lot of self-reflection and a lot of really tough days, it doesn’t need to be any harder.

Nicola Sturgeon described it as very dehumanising, I think that’s right

In the 2014 Scottish independence referendum, Robin, 44, was against the country leaving the UK. She lives in Fife, Scotland, but originally comes from England. “All things being normal, I do feel it’s better to be in unions,” she told openDemocracy. “I wasn’t for independence before.”

By yesterday afternoon, her views were changing. While for her, Brexit had already “reopened” the question of independence, the UK government’s opposition to trans rights, and the Scottish government’s support, was “pushing [her] further” in that direction.

Also swaying her, was Labour’s failure, as she saw it, to stand up for her rights as a trans woman. Robin explained: “We’re seeing this week Keir Starmer being utterly depressingly shockingly disappointing – trying to curry favour with the right, spouting nonsense, which, as a human rights lawyer, he must know is nonsense.

“So that’s Labour, which would be my normal political home, screwed up. It does feel quite extraordinary to see the question [of independence] changed in this way.”

Later in the day, after Sunak’s government announced its plan to block the Scottish legislation, Robin messaged openDemocracy again – her views had well and truly shifted. “With tonight’s announcement,” she said, “I will be helping the independence campaign. I think the Tories actually want rid of Scotland but can’t admit it.”

“This impacts trans people massively,” added Beth Douglas, a trans activist from Glasgow. “We’re seeing the UK government and the UK Labour Party attack devolution in the name of intolerance. We all know why politicians do culture wars, to distract from their record in office.

“The GRR Bill [would] show that all the myths and the lies and the so-called ‘legitimate concerns’ are misplaced. They want to block this so they can keep this culture war alive.”

It absolutely appals me that Labour is going along with a hard-right Tory government

Douglas continued: “This bill does three things. It makes sure that by getting a GRC [Gender Recognition Certificate], you’ll be correctly gendered when you pay taxes, get married or die. Not everyone marries, but death and taxes are inevitable.”

Now that the law’s future hangs in the balance – with, at the very least, delays inevitable – she said, “we’ll see more trans people buried under the wrong gender”.

Douglas added: “Tories don’t surprise me. It absolutely appals me that UK Labour are going along with a hard-right Tory government. They’re supposed to be the party of devolution, the party of the equalities act, and the party of the GRA – they’ve thrown all that away.”

Asked if the UK government’s block was pushing people in Scotland’s trans community to move towards supporting or even campaigning for independence, she said: “Yes, yes and yes again”.

Of course, that’s not everyone’s view.

Scottish Labour and the Scottish Liberal Democrats both supported the bill, as did three Conservative MSPs. On Twitter, Kezia Dugdale, the former leader of the Scottish Labour Party, pointed out that two-thirds of MSPs, from all five parties in the Scottish parliament, backed the legislation. She added: “Blocking it will anger Nationalists AND Devolutionists”.

In a statement emailed to openDemocracy, Scottish Liberal Democrat leader Alex Cole-Hamilton said: “This is a cynical attempt from an embattled Conservative Party looking to revive their electoral prospects by stoking division and fear about a vulnerable group of people. If they really thought this bill was dangerous or illegal, why did they give their MSPs a free vote and why did their previous Scottish leader vote for it?”

Meanwhile, Scottish Labour’s Iain Murray tried to steer away from the obvious constitutional issues at the heart of this, while riding two horses on the core issue of trans rights.

In a statement sent to openDemocracy, Murray said: “These issues are too important to be reduced to the usual constitutional fight. The Tory and SNP governments must not use this for political posturing, but instead get round the table and find workable solutions that address legitimate concerns.”

Conversely, of course, some independence supporters, particularly those at the more flag-waving nationalist end of the spectrum, didn’t support the bill. Alex Salmond’s Alba Party, which has received humiliatingly small vote shares, has made opposition to trans rights a central feature of its offer, alongside supporting independence. And nine SNP MSPs broke their party’s whip to vote against the legislation.

Across the union

It’s not just in Scotland that last night’s announcement is pushing people to reassess their constitutional positions.

“When both major British parties want trans people to just quietly stop existing, where is there any room for hope in the UK?” asked 25-year-old Ash Jones, a trans activist from Belfast, speaking to openDemocracy after the announcement.

“It definitely underlines the central failures of the British state to accept even modest improvements. I'm tentative about viewing Irish unity as a panacea,” she added, “but at least change in the Republic seems possible. In a lot of ways, Starmer's acceptance of, and political cover for, the Tories’ far-right policies feels like a death knell for any progressive unionist point of view.”

In fact, similar laws to the Scottish parliament’s Gender Recognition Reform Bill have been in place in the Republic of Ireland since 2015.

And politicians from parties that hold a majority of seats in the Northern Irish Assembly – including Sinn Féin, Alliance and the SDLP – have praised the changes in Scotland, raising the prospect of Gender Recognition Reform in Northern Ireland, if the Assembly reconvenes and the Scottish government manages to see off Westminster interference in the courts. Last month, a report for the Assembly recommended that it adopt similar legislation to Scotland’s.

When both major British parties want trans people to just quietly stop existing, where is there any room for hope in the UK?

For equality campaigners in Northern Ireland, Sunak’s decision contrasted with the UK government’s refusal to intervene with Northern Irish devolution, even when the Assembly wasn’t sitting due to disagreements between nationalists and unionists.

As another LGBTIQ+ activist in Northern Ireland, who asked to remain anonymous, said to openDemocracy: “We campaigned for five years to get the UK government to act on marriage equality… It’s a bit rich for the UK government to claim it’s about protecting rights across the UK now. It’s more about a clear anti-trans agenda.”

Equal marriage was introduced in Northern Ireland only in 2020 after bills were proposed from the back benches of the House of Commons and the House of Lords.

Similarly, its abortion ban was overturned only in 2019 after intervention in the courts.

The activist continued: “From my engagements with LGBTQI+ people from Protestant/Unionist/Loyalist backgrounds, their positions around constitutional issues are changing.”

Often, he said, it feels like they have their “faces pushed up against the glass of ‘true’ LGBTIQ+ equality in the Republic”. Ireland’s Taoiseach, Leo Varadkar, is gay, and the activist said: “Looking 50 miles down the road, there is a government which celebrates LGBTQI+ people.”

Meanwhile in the UK, an action plan for equality has been binned, and there are “increased levels of transphobia and a very consistent message that [the government] doesn’t care about LGBTQI+ people,” he added.

“The UK was given a chance to test this legislation in Scotland,” he said, but rather than taking up that opportunity, it has chosen to fight against trans rights.

In other ways, though, the situation is a strange reversal. Even recently, the UK was seen by many in Northern Ireland as relatively progressive when compared with both Northern Ireland and the Republic, with the latter famously influenced by the Catholic church. But the remarkable collapse of Vatican support in the Republic as a result of abuse scandals over the past decade, twinned with the collapse in Loyalism in the North, seems to have redrawn the boundaries of political reality in surprising ways.

Last week, Welsh first minister Mark Drakeford told the Welsh Assembly that he planned to emulate the Scottish legislation, saying: “We will seek the powers and, if we obtain those powers, we will put those powers to work here in Wales, and we will put proposals in front of this Welsh Parliament [to reform gender recognition laws]”.

As Beth Douglas pointed out to me, there is an historical irony to all of this. Over the 19th century, the UK violently imposed its beliefs about gender roles on countries around the world, for example, criminalising India’s ancient non-gender conforming community in the 1871 Criminal Tribes Act. That same obsession is now rallying opposition to the continuation of the UK itself.

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