Court decision could have wide-ranging implications for trans and women’s rights as well as devolution
Gender Recognition Reform (Scotland) Bill is designed to streamline the official route to changing.
A landmark court ruling has upheld the UK Government’s unprecedented veto of the Scottish Parliament’s gender self-identification bill.
In a major blow to the Scottish Government, the Court of Session on Friday dismissed its appeal against Westminster’s decision to override MSPs and axe the bill.
Lady Haldane’s judgment represents a win for the UK Government at a time when it has been accused by the SNP of intruding on devolved areas.
The controversial Gender Recognition Reform (Scotland) Bill was voted through by the Scottish Parliament with cross-party support in December 2022 by 86 votes to 39.
The legislation is designed to streamline the process for people to obtain a gender recognition certificate – the official route to changing your legally recognised sex.
In January, Scottish secretary Alister Jack used Section 35 powers from the Scotland Act 1998 – the legislation that established the Scottish Parliament – for the first time to stop the bill receiving royal assent.
He argued that the legislation would adversely impact the UK-wide 2010 Equalities Act which sets out protections for groups including women and transgender people.
Scotland’s First Minister launched the legal challenge after he became First Minister in March, describing the move as an “undemocratic veto”.
Following the ruling, Humza Yousaf said the judgement confirmed “beyond doubt that devolution is fundamentally flawed”.
“The Court has confirmed that legislation passed by a majority in Holyrood can be struck down by Westminster,” he said.
“The only way to guarantee we get true self-government is through independence.
“This is a dark day for devolution. Sovereignty should lie with the people of Scotland, not a Westminster Government we didn’t vote for with the ability to overrule our laws.
“We, of course, respect the Court’s judgment and will take time to consider its findings.”
Nicola Sturgeon – who was first minister when the bill was passed – labelled Westminster’s block a “full-frontal attack” on Scottish democracy.
Lord Advocate Dorothy Bain
She said that because the reforms would only change the process of getting a gender recognition certificate – rather than the real effect of the certificate itself – it had no impact on equalities law.
She warned that a successful ruling in the UK government’s favour could mean Westminster “could veto practically any act of the Scottish Parliament having an impact on reserved matters because he disagreed with it on policy grounds”.
“That would be tantamount to the Scottish Parliament being able to legislate only insofar as the UK executive consented,” she said.
David Johnston, who was acting on behalf of the UK Government, dismissed the idea that the Scottish secretary’s use of a Section 35 order was unconstitutional.
He said the power is part of the “very structure of devolution” and added that it would be “highly problematic” to have two different systems of gender recognition within the UK.
He said Jack was correct to scrutinise the Holyrood bill to “protect the interests of the United Kingdom if he identifies adverse effects on the operation of law as it applies to reserved matters”.
The Scottish Greens described it as a “devastating day for equality”.
The Scottish secretary said he welcomed the ruling.
He told STV News: “I’m obviously very pleased that the decision I took has been vindicated.
“I’m very pleased that the Section 35 order that has never been before is clearly cemented into the Scotland Act of 1998 and I’m pleased also that the judge agreed with me that there were adverse effects on GB-wide legislation relating to equalities.”
The Scottish Government said it “notes the judgement” and will “consider its terms”.
What happens next?
The ruling is likely not the end of the matter.
The Scottish Government has the right to appeal the decision at the Supreme Court, pictured top of page.
That will be a choice for Scottish ministers to make but is expected to be announced soon.
Taxpayers have already shelled out £230,000 for costs on the Scottish Government’s side.
“It is shameful that after years of debate, trans people feel no more protected and women no more reassured.
“This is another demonstration of why both governments have to work together rather than spending taxpayers money fighting in courts and pitting communities against each other.”
“Their reckless Gender Recognition Reform Bill is deeply unpopular with the Scottish public because its self-ID principle compromises the safety of women and girls – as the case of a double-rapist being sent to a female prison demonstrated.
“In addition, the Bill impacted on equalities law south of the border, which is why the UK Government had no option but to issue a Section 35 Order.
“Rather than taking that as a cue to redraft their flawed bill, the SNP dug their heels and turned an issue of women’s safety into another constitutional grievance – a cynical tactic which has backfired today.
“Humza Yousaf must now listen to the court, as well as the court of public opinion, not appeal this ruling and ditch the Bill for good. We all want to see the lives of trans people improved but that can’t come at the expense of the hard-won rights of women and girls.”
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Presenter Kaye Adams hosted a discussion show on Radio Scotland about the UK Government’s blocking of the Gender Recognition Reform Bill which was backed at the Court of Session in Edinburgh last week (see above).
Kaye Adams seemed to lose her cool with a caller in her Radio Scotland show on Monday as ordinary Scots warned Humza Yousaf to “let it go” when it came to gender reform. The First Minister is mulling over an appeal after his administration suffered a humiliating defeat in the courts last week.
Lady Haldane judged that the UK Government had acted correctly after blocking the SNP’s Gender Recognition Reform Bill over concerns it would impact on the reserved Equality Act. Alister Jack had deployed section 35 of the Scotland Act for the first time to stop the legislation, which would simplify the process by which someone legally changes gender, receiving royal assent.
And it appears voters aren’t buying SNP and Green claims that the decision was undemocratic and an attack on devolution. But Adams seemed unimpressed with one caller, John, who opposed the act. He said: “Let it go…there’s the cost to the taxpayer. This is really not to do with a ‘dark day for’ devolution – this is democracy at work.”
It was when John questioned the ‘democracy’ of the Act that Adams hit out. While the gender reforms were backed by a “clear” majority in parliament, John believes that was only because all the parties other than the Tories whipped their MSPs to vote for it.