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The U.K. Supreme Court handed down an important decision April 16 following an appeal by the group For Women Scotland. The dispute concerned a 2018 Scottish law aimed at ensuring gender-balanced representation on the boards of some public authorities in Scotland. The Court was asked to determine whether, under U.K. equality law, the legal definition of “woman” includes trans women who have obtained a gender recognition certificate (GRC).

The court’s answer: no.

According to the ruling, the term “woman” in this context refers only to a person of female biological sex. It thus reduces the scope of the GRC, a legal document attesting to the gender identity of trans people based on their felt gender rather than their biological sex.

This legal decision will have important ramifications, not only in the Scottish government’s public boards, but also in several spheres of activity where the GRC could be challenged (in sports, for example).

This isn’t the first time Scotland has seen a setback before a federal body on the rights of trans people. In 2023, the Conservative British government invalidated Scotland’s gender reform bill, a law tabled in 2022 by the Scottish National Party (Scotland’s pro-independence political vehicle) and adopted by a majority in the Scottish Parliament, with full democratic legitimacy.

This bill proposed recognition of gender identity from the age of 16. To invalidate the bill, the British government invoked Section 35 of the Scotland Act 1998. This clause, which it had never used before, gives it the right to intervene in certain exceptional cases to overturn legislation. Trans communities thus found themselves at the heart of a political power play between two levels of government, where the discussion quickly veered towards issues of sovereignty.

This conflict raises the spectre of trans issues being used to restrict the autonomy of minority nations. The Scottish National Party emerged extremely weakened, to the point where Scotland’s first minister, Nicola Sturgeon, was forced to resign. In an interview in the summer of 2024, she said  her attempt to give more rights to trans communities had earned her more political criticism than the issue of Scottish sovereignty itself. The Scottish government has since dropped the bill.

The Supreme Court’s latest unanimous ruling on the definition of a woman was, in fact, the second U.K. intervention on a Scottish bill aimed at offering greater rights and recognition to its trans communities.

Lessons to be shared between federations

Several parallels can be drawn between Scotland and Quebec, and also with the rest of Canada. Like Scotland, Quebec operates in a federative political space that is not appealing to its entire population. Both Quebec and Scotland have political vehicles that push for leaving the federation through independence.

Proud of its progressive approach to LGBTQ+ communities, Quebec has, at times, dissociated itself from the “rest of Canada” on this issue. Yet trans issues have become, in the words of Sturgeon, “a battering ram” in politics. It’s an evocative way to underline the fact that trans issues are now being used to knock down gates once thought closed in political debates.

What can we learn from the power play we’re witnessing on the other side of the Atlantic? Two lessons can be drawn from the Scottish experience on judicial composition and the political cost of manipulating LGBTQ+ issues.

Judicial composition is crucial

The first lesson from the Scottish experience is that the composition of superior courts within federations is important for LGBTQ+ issues. Historically, communities have advanced legally because of decisions handed down by the superior or supreme courts.

Recently, the Quebec government put forward a resolution demanding that the federal government consult the province before selecting superior court judges – a potential change that could have unpredictable consequences for LGBTQ+ cases.

Depending on the perspective of the party in power, judges chosen with provincial input could act as a bulwark against the erosion of LGBTQ+ rights, or as a catalyst for it.

The Scottish case shows how cases can be treated differently, depending on court composition, in a federation made up of several nations.

Quebec’s demand for input on judicial appointments coincided with a Superior Court decision to recognize children can have multiple parents. The judgment will force the Quebec government to reform its civil code to reflect the decision. It is the kind of decision that might have had a different result if Quebec had a say in Superior Court appointments.

Overall, in Canada, recent years have shown governments tend to turn against trans issues while courts often act to protect their rights. Hence the importance of having judicial bodies that are representative not only of national pluralities, but also of different ideological perspectives.

The U.K. case illustrates the effects of a predominantly conservative composition of the judiciary.

Politicizing these issues has a political cost

The second lesson is to beware using trans community issues for political ends, because the price can be high. The case of New Brunswick is a good illustration of this cautionary tale.

In 2023, the Progressive Conservative government, then led by Blaine Higgs, was sued for wanting to revise its own law (Policy 713) passed in 2020. The original policy aimed to better recognize the rights of trans children in schools by allowing them to choose the pronoun or first name of their choice. Higgs then wanted to add parental consent to this right, which was contested by human rights groups. This shift to the right contributed to the party’s defeat in the 2024 election, according to some observers.

Two other provinces, Saskatchewan and Alberta, are currently before the courts on similar “parental rights” issues. In Saskatchewan, the government is being sued for passing a law requiring parental consent if a child asks to be called by a different pronoun or given name at school. In Alberta, three bills, one of which prohibits doctors from providing certain treatments to trans young people under the age of 16, are also being challenged by LGBTQ+ rights groups.

It remains to be seen whether these provinces will learn from the New Brunswick precedent. Will they continue down this path, risking the same political setback, or will they instead seek to avoid a potentially lengthy and costly legal process?

The increasing judicialization of these policies suggests that the gamble of politicizing trans people’s rights carries real risks, which provincial governments should not underestimate.

LGBTQ+ issues and federalism: a complex dynamic

While Canada can learn lessons from the U.K. with its similar political system, the two countries are, in some respects, in opposite situations. While Scotland is trying to advance the rights of trans communities, in Canada, it is two provinces trying to legislate “setbacks” for these communities.

While New Brunswick has demonstrated that it is electorally unprofitable to attack minorities, the Scottish case shows the reverse can also be true: there can be a political cost to advancing the rights of trans people when the central state is conservative. Conversely, when the state adopts a progressive stance on LGBTQ+ issues (as was the case under Justin Trudeau), some provinces seem to want to move away from it.

In short, the institutional arrangements of federations like Canada and the U.K. have significant effects on social issues – and their political manipulation – when power is contested between different levels of government. This is particularly true in multinational states.

Fortunately, geographic proximity to the democratic backsliding in the United States has had the effect of reaffirming Canadians’ belief in democracy and the rule of law. Hopefully the nations within the Canadian federation will unite to protect minorities rather than make them the target of a power struggle.