The PM’s Gambit

Our politics is now so absurd that simplifying a form sparks a constitutional crisis. The Scottish Parliament’s Gender Recognition Reform Bill (GRRB) aims to make obtaining a gender recognition certificate (GRC) less bureaucratic and humiliating. It’s a relatively simple administrative reform (albeit with significant impacts for transgender people). Yet, in Scotland, it has become a symbol of Whitehall oppression. Down south it underpins the latest Tory gambit to avoid losing the next election.

Governments have spent the last decade bemoaning “activist lawyers”, so it’s ironic that the prime minister has chosen the courtroom for his latest attempt at political survival. His notice, under section 35 of the Scotland Act, dares to Holyrood to fight it out in court. A section 35 notice may be issued where a minister “reasonably believes” that a Holyrood bill will have an “adverse effect on the operation of the law as it applies to reserved matters”. Whitehall’s case is essentially that the GRRB will (1) increase the risk of fraudulent applications, (2) change the operation of the Equality Act 2010, and (3) create various administrative problems.

Transgender people offer an ideal “invented enemy”. They are a tiny minority, politically and financially powerless

None of these arguments is particularly convincing. Scare stories about “trans sexual predators” tend to be spurious rehashes of the slurs once aimed at gay men. The Isla Bryson case has again focused the spotlight on transgender women in prisons, although it should be noted that there were only six such incidents of assaults in this context between 2016 and 2019. Even if one believes that the country is full of men waiting for the correct GRC paperwork before they start to harass women, the GRRB will make no difference. Laws permitting the exclusion of transgender women from single sex spaces don’t turn on a GRC. If such exclusions really are necessary to protect cis women, then GRRB will not alter powers to do so.

The Equality Act already recognises that the prohibition on discrimination must be balanced against other rights and interests. Regardless of a GRC, decision-makers must justify their treatment of transgender (and cis) people as “proportionate” and in pursuit of a “legitimate aim”. This won’t change with the GRRB.

While the existence of differing regimes in England and Scotland may generate some administrative complexity, this is hardly unique. England and Scotland already have entirely different legal systems. It’s not clear how one administrative difference is somehow particularly “adverse”. That said, Whitehall will likely beat Holyrood in court. The longstanding legal principle is that a decision is “reasonable” so long as it is not so absurd that “no reasonable decision-maker” would reach that conclusion. Decisions can, therefore, be thoroughly misconceived and poorly justified, yet still be considered “reasonable” by the courts. Whitehall can run a bad case and still win.

The real issue, however, goes deeper than the legal technicalities. Sunak’s government is beset by scandal, presides over a failing economy, and is twenty points behind in the polls. The section 35 notice is part of an age-old tactic for under-pressure authoritarians: direct the public’s anger at an invented enemy. The pantheon of minorities speciously designated a threat includes the Irish, Jews, people of colour, and immigrants. Transgender people offer an ideal “invented enemy”. They are a tiny minority, politically and financially powerless, and differ (slightly) from the middle-England norm. Today, a government intent on blaming a vulnerable minority for the country’s problems can rely on a baying mob of fame-hungry grifters, populating television studios, tabloid pages and social media to amplify the fantasy.

There are, of course, real issues to be worked out around transitioning. Often science cannot (yet) provide complete answers. Tackling these requires nuance, compassion and respect for the humanity of those involved (and must be anchored in reality, not tabloid/social-media hysteria). Section 35 was never designed to be used as a political weapon. To suggest that Whitehall can overrule Holyrood whenever it’s politically convenient undermines the essence of devolution. But herein lies one of the fundamental problems with our constitution: there’s nothing to stop our leaders abusing the law. Our political system assumes that politicians will use their powers in good faith. But it offers them no incentive to do so. The “reasonability” doctrine exemplifies this. It’s premised on the assumption that decision-makers are both honest and competent (it remains untouched by the mountain of evidence to the contrary). Every official, from the prime minister to the lowliest civil servant, knows they are all but untouchable where the reasonability criteria apply, no matter how catastrophic the consequences of their actions are for others.

Effective constitutions acknowledge Lord Acton’s maxim: “power tends to corrupt, and absolute power corrupts absolutely.” They contain checks and balances to curtail the abuse of power. The UK, almost uniquely amongst Western states, does the opposite. Citizens are, for the most part, expected to blindly trust that our leaders are “good chaps”. Until we address this constitutional lacuna, those in power will continue to misuse it, and the most vulnerable will continue to pay the highest price.

Sam Fowles is a barrister, Director of the ICDR, and a lecturer at St Edmund Hall, Oxford. He tweets at @SamFowles