THE SCOTTISH GREENS were clearly delighted and relieved when ‘continuity’ candidate Humza Yousaf was installed in Bute House as SNP leader and thus First Minister. His defeat would probably have meant a setback for the most contentious of their flagship policies: the Gender Recognition Reform Bill (GRR), passed in December 2022 and denied Royal Assent in January 2023 when the UK government for the first time since devolution invoked Section 35 of the Scotland Act which, under certain conditions, allows Westminster to block legislation passed at Holyrood.
Predictably, SNP and Scottish Greens were incensed at being out manoeuvred by big, bad central government.
“See you in court!” was ex-First Minister Nicola Sturgeon’s response, and that’s where this week the dispute arrived. During the leadership hustings following her resignation, her battle cry was echoed by Humza Yousaf. His main competitor, Kate Forbes, was in contrast less enthusiastic about taking the UK government to court over a bill that she didn’t wholeheartedly support anyway. Promptly Scottish Greens leader Patrick Harvie threatened to walk away from the power sharing agreement with the SNP, should the new first minister not challenge the UK government’s decision to block the GRR.
Had the Bill become law, applying for a gender recognition certificate in Scotland would have been significantly different from the application process in the rest of the UK with far-reaching consequences especially for transgender people. According to the GRR, if people in Scotland wish to have their “acquired gender” (female when born male, male when born female) legally recognised, they need to be at least 16 years old instead of 18 as elsewhere in the UK. They need have lived in the respective acquired gender for at least 3 months instead of 2 years (16- to 17-year-olds 6 months). The procedure merely involves a simple declaration at the registrar whereas in England, Wales and Northern Ireland a diagnosis of gender dysphoria and a hearing in front of a Gender Recognition Panel of legally or medically qualified people is required (these are the current positions pertaining in Scotland).
Kate Forbes would likely have dropped the idea of a court challenge and might instead have worked with the UK government on a solution. For Patrick Harvie this would have amounted to a defeat, hence his threat of pulling out of the Bute House Agreement. From his perspective he probably had to salvage as much as possible of what was left of the Greens’ gender ideology ambitions.
In the days before the final vote on the GRR, he and Green MSP Maggie Chapman made clear on Twitter (now X) that, while applauding the proposed Bill as a “welcomed step”, it didn’t go far enough and they spelt out where, according to them, the Bill fell short. Ms Chapman promoted a process forunder 16s“because we know many trans people know who they are, sometimes as young as 6 or 7 years old”. In addition, she demanded any reflection period to be removed. Furthermore, the Greens follow the doctrine that the sex of human beings isn’t binary and not limited to male or female. Accordingly, people who identify as “non-binary” should also be able to obtain legal recognition.
To fully understand why the Scottish Greens are making these demands, it’s worth taking a look beyond Scotland and the UK. As a green party, the Scottish Greens don’t act alone. In fact, they are the Scottish branch of the European Green Party. This umbrella organisation has a membership of Green parties from 36 European countries within and beyond the EU. At European level political positions, aims and policy are decided which national parties strive to implement.
Green leaders at a European Greens congress in Copenhagen 2022, 2nd from left, Scottish Greens leader Patrick Harvie. Source: Member Parties | European Greens
In 2020 the European Green Party adopted a resolution titled “Trans Rights Here! Trans Rights Now!”with a long list of demands as to what steps European states should take in the interest of transgender people. To quote just a few:
- “implement legal gender recognition procedures that are quick, transparent, accessible, affordable and based solely on the self-determination of the person, without age restrictions;”
- “take measures to ensure safe school environments for trans students, teachers and parents, including the implementation of national trans-inclusive curricula, anti-discrimination measures, teacher trainings and anti-bullying strategies;”
- “train their law enforcement authorities and their justice personnel to respect gender identities and guarantee that trans people who receive prison sentences can serve their sentence in the division for the gender with which they identify and receive the medical treatment they need;”
- “allow trans people, including trans children and youth, to be accompanied safely as they explore their gender identity and expression, and for them to access services as and when they decide.”
Look familiar?
One country that seems to be determined to follow the key points of this resolution to the letter is Germany. The German Greens – or the Alliance 90/The Greens party, to use their correct name – are an electoral force to reckon with. Since the last general elections in 2021 they are in government together with the Social Democratic Party (SPD) and the Free Democratic Party. As a result, they prop up Chancellor Olaf Scholz’s government just as the Scottish Greens prop up the SNP. Incidentally, the German coalition agreement explicitly states that the current transgender law will be replaced by a so-called Selbstbestimmungsgesetz –self-determination law.
The position paper, on which the draft legislation will be based, points exactly in the direction envisioned by the European Greens and is also in line with the Scottish Greens ambitions: legally changing gender merely by oral declaration, no qualifying period or other checks required, provision extended to people identifying as “non-binary”, age limit for changing gender set at 14. If parents disagree, the matter will be decided by family courts with judges assessing what, in their view, is in the best interest of the child. For under 14s parents make the declaration on behalf of their children. This means that potentially children of any young age can change their birth gender at will. And it doesn’t stop there. Once someone has changed their legal gender, they are banned from reversing the decision for one year. After that they are free to switch back to their original gender. Theoretically, if the German Greens get their way, in the land of theDichter und Denker –the poets and thinkers – you will be able be man or woman once a year as you may please.
All of this must be music to the ears of the Scottish Greens. Had the UK government not stopped the Scottish GRR from becoming law, Patrick Harvie & Co. would probably have lobbied and pushed for the Bill to be amended and extended in similar ways.
The draft legislation has now been approved by the German Cabinet and will now be put to theBundestag, the Federal Parliament in Berlin, and is likely to be passed with the votes from SPD, FDP and Alliance 90/the Greens already in the bag. After that, it will be law and there is no mechanism to stop it. It can only be challenged in the German Constitutional Court in Karlsruhe. However, the outcome of this would be very uncertain.
This is the chosen route of Patrick Harvie and Germany will become the new example of who to follow.
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Photo of Patrick Harvie and Humza Yousaf courtesy of Green Party website.
