Why did England veto a Scottish gender reform bill?

By vetoing the bill, the Conservative government in London exercised ‘muscular unionism’.

Trans rights protestors in London
Transgender rights supporters protest in favour of a Scottish gender reform bill, in London, Britain, on January 21, 2023 [Henry Nicholls/Reuters]

Late last year, Pope Francis was asked by a Spanish newspaper what role, if any, the Catholic Church should play in ending the constitutional standoff in Catalonia.

“Los ingleses resolvieron ‘a la inglesa’ las solicitudes de Escocia,” he replied. “The English resolved the requests of Scotland ‘in an English way.’”

As well as being cryptic, the remark was, I think, meant to be comparative: if the British authorities could facilitate a peaceful referendum on Scottish independence in 2014, surely the Spanish authorities could find a similar solution for Catalonia.

I used to spend a lot of time in Catalonia as a reporter and this was a common refrain among the independence supporters there. Britain is a democracy, they would tell me; Spain is not.

In 2023, however, that contrast – between British constitutional tolerance and Spanish intransigence – is becoming harder to sustain.

On January 16, the United Kingdom government did something it had never previously done in the 24-year history of Scottish home rule: it unilaterally vetoed a law that fell explicitly within Scotland’s devolved jurisdiction.

The law in question – which enjoyed cross-party support among Scottish parliamentarians – was aimed at making life easier for trans people by streamlining the otherwise stressful bureaucratic process of gender transition.

Speaking in the House of Commons, Alister Jack, the Conservative secretary of state for Scotland, argued that the bill risked violating aspects of UK-wide equalities legislation, although he struggled to explain which aspects it would violate and why.

Scotland’s first minister, Nicola Sturgeon, hit back. Jack’s decision to trigger a so-called “section 35 order” signalled a “full-frontal attack” on Scottish autonomy, she said, and underscored the Conservative Party’s “contempt for devolution”.

Sturgeon, the leader of the pro-independence Scottish National Party (SNP), isn’t exactly neutral in this debate, but she may have a point. In recent years, and specifically since Brexit, Tory politicians have become increasingly hostile to any institution that challenges the traditional pillars of power – Westminster, Whitehall, the monarchy – in British public life.

Michael Keating, a professor of Scottish politics at Aberdeen University, calls this trend “muscular unionism”. Another name for it might be Anglo-British nationalism: the belief that the UK is a unitary state, not a union, and that sovereignty in the British system lies exclusively with London.

Brexit turbocharged this “Anglo-British nationalism” because the vote to leave the EU was fuelled, in the first instance, by English eurosceptic sentiment and, in the second, by the rhetoric of “global Britishness”.

The conflation of “English” with “British” in the language of Brexiteers was partly unconscious: England is by far the largest country in the UK and its interests have historically overshadowed those of the smaller Celtic nations.

But it was also compensatory. Voters in Scotland did not in 2016, and do not today, want to be outside the EU. Yet the centralising logic of Brexit, rooted in a predominantly English desire to escape the continent’s “oppressive” political norms, dictates that they must.

Jack’s intervention dovetailed with another ongoing development on the British right: the rise of a reactionary cultural populism that has selected as its latest target the UK trans community.

Britain’s conservative media is in the midst of an incessant campaign against “gender extremism”. “Trans law ‘could turn parents into criminals’,” screamed one recent headline in The Daily Telegraph; “Why teenage girls are on the front line of the trans war,” screamed another.

This campaign has been stoked by Conservative policymakers.

Last October, during her brief tenure as prime minister, Liz Truss railed against the “absurdity” of gender self-identification laws for trans people. On January 21, Kemi Badenoch, the current Tory minister for women and equalities, said she thought “predatory” men would exploit Scotland’s gender recognition reforms to secure access to women-only spaces.

Neither Truss nor Badenoch produced any evidence to support their assertions – because there is no evidence that gender reforms of the sort being proposed by the SNP raise the risk of violence towards women and girls.

But for the British Tories, rational discourse is not the goal here.

After 14 years in power, and with the adrenaline surge of Brexit beginning to wear off, the party is flailing. It has burned through three leaders in the space of six months and is now staring down the barrel of a 20-point polling deficit. Meanwhile, the next UK general election hovers menacingly on the horizon.

The right’s full-blown embrace of transphobia should, then, be seen as a cynical attempt to excite a demoralised Tory base.

The twinning in Tory politics of culture war paranoia with a belligerent form of post-Brexit nationalism bears worrying implications for British democracy.

Alister Jack justified his decision to annul the SNP’s gender bill on the grounds that, once enacted, the new law could have unwanted spillover effects in England.

Yet, almost immediately, one of his Conservative colleagues gave the game away. The Scots have “the right to pass their own laws”, the Member of the Scottish Parliament, Rachael Hamilton, told Channel 4 News on January 17, but only if those laws are “good”.

Needless to say, this is not how devolution was meant to work when the Scottish Parliament was first established in 1999. Nor should the Tories – who haven’t won an election in Scotland for 70 years – act as sole adjudicators on the quality of Scottish legislation.

The problem for supporters of the Union is that Jack’s intervention has made Britishness itself synonymous with social intolerance – a sure-fire repellant for the liberal voters unionists need to stave off the SNP.

The UK once functioned, or was supposed to function, as a plurinational state composed of multiple territorial narratives and demands. Now, under a radicalised Tory party, when the peripheries step out of line, the centre stands ready to set them straight again.

Unfortunately, faced with this tightening constitutional trap, Scotland’s broader political options are limited.

In 2021, Boris Johnson summarily dismissed the SNP’s request for a second independence referendum. In 2022, the British Supreme Court ruled that only Westminster could legislate for a “legitimate” plebiscite on the breakup of Britain – Sturgeon’s central objective as Scotland’s first minister.

Pope Francis’s formulation makes more sense if inverted. For the time being, at least, the Scots will just have to learn how to live in a more English way.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.