Back when I was in school we learned all sorts of strange stuff in history. One of the things that caused much mirth in the class was the fact that there was a major war between Britain and Spain called The War of Jenkins’ Ear. It was a dispute over the American colonies. In 1731 a British ship called the Rebecca, captained by one Robert Jenkins, was boarded by Spanish coastguards off the coast of Florida (then Spanish territory). Captain Jenkins was accused of smuggling, and his left ear was cut off as a warning to other British sailors. Eight years later, Parliament used this incident as a pretext to declare a war that was fought mainly in the Caribbean.
Now we have something even sillier. The Westminster government has precipitated a major constiutional crisis over the issue of Scottish devolution, and their pretext for doing so is access to women’s toilets. Perhaps it will be called the War of Ladies’ Loos.
As you are probably aware, the Scottish parliament has passed a law simplifying the process of legal gender recognition in Scotland. What they have done is by no means unusual. Many countries around the world have already passed similar legislation. Ireland did it in 2015, and none of the terrible things that anti-trans camapigners have predicted for Scotland have come to pass there. But Westminster has chosen to make this issue one over which they will activate their nuclear option of a Section 35 Order. This is a part of the Scottish Devolution Act which allows Westminster to strike down any law passed by Holyrood if that law is deemed a signifcant danger to the Union (i.e., the political union of the component countries of the UK).
Yes, you read that right. The question as to where I am allowed to pee is so important as to pose a significant danger to the Union.
Westminister had earlier threated to simply refuse to recognise any Gender Recognition Certificates (GRCs) issued by Scotland under the new law. It was pointed out to them that they already recognise certificates issued by many foreign countries under similar legislation. Their reaction to this was to say that they would withdraw recognition of GRCs issued by any country whose procedures they deemed to be insufficiently rigorous. This would include Ireland, Belgium, Norway, Portugal, Iceland, Luxembourg, New Zealand, Pakistan, Argentina, Brazil, Chile and Colombia. Practically speaking it would also include Australia, Canada, Mexico and the USA, where such legislation is devolved to state legislatures and it may be difficult to discern from someone’s ID where their GRC was issued.
The fact that Australia, Canada, the USA and Mexico all have different regulations for legal gender recognition in different parts of their country, without any apparent difficulty, has apparently not yet penetrated the thick skulls in Westminster.
The justification for triggering Section 35 is also so flimsy as to be practically transparent. Westminster claims that the Scottish law will negatively impact the UK’s Equality Act by making it too easy for someone to obtain a GRC. However, the protections afforded to trans people under the Equality Act are independent of whether we have a GRC or not. You acquire the Protected Characteristic of Gender Transition simply by declaring publicly that you are undergoing such a process. That is, you aquire it by self-identification, in a manner much less robust than the Scottish law which requires a Statutory Declaration, with heavy penalties should you make such a declaration fraudulently.
It is also worth noting that the entire process of medical gender transition is predicated on self-identification. Once you have been accepted as a patient at a gender clinic you are required to begin living full-time in your desired gender. To facilitiate this the doctors will give you letters allowing you to change ID such as your driving licence and passport to match your new gender. A Gender Recognition Certificate only affects your birth certificate, which is explicitly not acceptable as a form of ID.
In other words, the whole thing is a storm in a teacup into which Westminster has been backed by the combined efforts of the right wing media, the religious right elements within the Conservative Party, and probably substantial donations from a certain wealthy author.
Interestingly, the Scottish law was backed by the Scottish Labour Party. The Welsh Government, which is a Labour government, has expressed support for the Scottish law. But the English Labour Party, or at least its leader, has expressed support for the Westminster line.
Goodness knows where this will end, but it appears that we are in for another year of Interesting Times in UK politics.
