One of the fundamental flaws in the Scottish devolution settlement set up by Labour and radically expanded by the Tories is the ability for policy divergence in Scotland to impact on the rest of the UK. The Gender Recognition Reform Bill, on the cusp of being passed by the Scottish parliament, might prove an object lesson. The Bill overhauls the process by which a person obtains a gender recognition certificate (GRC). This is the document which recognises an applicant’s gender identity in place of their biological sex. For example, a male who identifies as female and acquires a GRC becomes female in the eyes of the law.
The Bill being pushed through Holyrood by Nicola Sturgeon’s government makes this process easier, faster and open to more people. It removes the current requirement for a medical diagnosis of gender dysphoria in favour of allowing applicants to declare their own gender. The Bill also cuts the waiting period for a GRC from two years to three months (plus a further three-month period of reflection) and lowers the minimum age at which a person can obtain one from 18 to 16.
On the face of it, the passage of this Bill should be of no concern to anyone outside Scotland. However, as equalities minister Kemi Badenoch has warned, there is no way to restrict the effects of the legislation to Scotland. The problem is that, even if the Bill falls within the legal competence of the Scottish parliament, it interacts with policies and provisions that do not. This means that, unless ministers successfully challenge the law as ultra vires, they will need to find a way of accommodating it. (They could, of course, refuse to accommodate it – but that would require No.