LGBTQ+ Action Plan: Why the Welsh Government's gender powers aim is unlikely to succeed

There’s a huge gap between the Welsh Government’s stated aim of simplifying gender recognition here in Wales and the likelihood of it happening.

Ministers in Cardiff can’t change the law, there’s no guarantee they would succeed in gaining the power to change the law and they can’t force a legislative showdown as the Scottish Government has just done. 

Under current devolution rules, only the UK Parliament can change the law on gender recognition in Wales, not the Senedd. 

Not only that, but it’s one of those areas which, since 2017, has been explicitly stated in legislation to be “reserved” (i.e. the power is retained at Westminster).

So when the Welsh Government in its LGBTQ+ Action Plan echoes Mark Drakeford’s recent comments and says that it will seek the devolution of powers in relation to gender recognition, that’s all it can do: seek them. 

It’s up to the UK Parliament (in practice, the UK Government) whether or not to transfer those powers and even then they couldn’t just be handed over: there would have to be legislation debated and voted on by both the House of Commons and the House of Lords.

The Welsh Government can’t even try to do what the Scottish Government has just done: pass legislation in the Scottish Parliament and dare the UK Government to challenge it in the Supreme Court or, as it actually did, take the unprecedented step of blocking that legislation. 

Politically there’s virtually no chance that the current Conservative UK Government would agree to transfer the powers, having made its position clear in its action toward Scotland. 

The UK Government’s Scottish Secretary stated that “The bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales.”

Ironically the momentum behind simplification stems from a Conservative UK Government under Theresa May who has recently said that she was “disappointed” that similar plans were no longer being considered for England. 

Perhaps the call for a power transfer would be treated more favourably by a future Labour government in Westminster, although Keir Starmer has gone on record to say that he has “concerns” about it.

Politics is about principles and positions, though, not just practicalities. 

The fact that the Labour Welsh Government, backed by Plaid Cymru, has so clearly made this commitment part of its LGBTQ+ Action Plan, something it says is central to how it wants to govern, send its own clear message. 

That message is that it is willing to have the fight, both with the UK Government and critics of gender recognition here in Wales. 

Scotland has shown how difficult that fight can be but now a majority of Welsh politicians think it’s a fight worth having.