Rishi Sunak is set to use a constitutional “nuclear option” for the first time by blocking legislation passed by the Scottish parliament that seeks to make it easier for people north of the border to legally change their gender.
No British prime minister has ever used Westminster’s power to block a law passed by the Scottish parliament, but three people close to discussions in Downing Street said that was Sunak’s intention. “The legal advice is clear,” said one.
The move will inflame Scottish nationalist sentiment, but Sunak’s legal advice is that the bill passed by Holyrood cuts across UK legislation on equalities — one of the policy areas reserved for Westminster.
The prime minister intends to appease equalities campaigners by separately bringing forward long-delayed UK legislation to ban conversion therapy, including for transgender people.
The Scottish parliament last month approved rules lowering the age at which people can apply for a gender-recognition certificate to 16 and removing the need for a medical diagnosis of gender dysphoria.
Sir Keir Starmer, the Labour leader, added his voice to criticism of the Scottish legislation on Sunday, saying he believed 16-year-olds were too young to change their legally recognised gender.
Sunak has until Wednesday to decide whether to block Scotland’s bill using Section 35 of the 1998 Scotland Act, which created the Scottish government and set out down the powers of the respective Holyrood and Westminster parliaments.
One senior government figure said: “There isn’t much disagreement that legally we have to act.” A decision could be taken as soon as Monday and Alister Jack, the Scotland secretary, is said to be fully supportive of the intervention.
Kemi Badenoch, the equalities minister in the London government, has expressed “concerns” over the Scottish bill and Sunak has said it was “completely standard practice” to assess its impact on the UK overall.
Downing Street said on Sunday: “We have made no decision on any potential action at this time.” Government ministers expect a Section 35 order would be challenged by Nicola Sturgeon, Scotland’s first minister, in the courts, but are confident of victory.
A Scottish government spokesperson last week said: “The bill as passed is within legislative competence, and was backed by an overwhelming majority, with support from members of all parties.”
But equalities campaigners will draw some comfort from the news that the UK government is bringing forward a longstanding commitment to legislate on banning conversion therapy.
Originally promised by former prime minister Theresa May in 2018, the move has been repeatedly delayed but government officials said it would now be brought forward as early as this week.
Crucially the bill, which will be subject to pre-legislative scrutiny by senior parliamentarians, will cover transgender people, one official said.
Last April the government said any ban would only apply to attempts to alter a person’s sexuality, not attempts to try to change people’s gender identity. Iain Anderson, the government’s LGBT+ adviser, quit in protest.
“The government remains committed to banning conversion practices in this country,” the government equalities office said. “In order to ensure the ban is as effective as possible, we are currently analysing the responses to our consultation. We will set out our next steps in due course.”
According to the British Psychological Society, conversion therapy tries to change someone’s sexual orientation or gender identity. It can include talking therapies and prayer; more extreme forms can include exorcism and food deprivation.
