In January of this year, we saw the UK Government take the unprecedented step of blocking the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill from receiving Royal Assent and passing into law, leading to a constitutional dispute between the two governments.
The Bill aims to simplify the process for trans people to change gender in the eyes of the law. The Bill proposed the removal of the requirement for a medical diagnosis, a reduction in the age limit from 18 years to 16 years and also a reduction in the time a person is required to live in their new gender from two years to six months (if the person is over 16) or three months (if over 18). Further detail on the Bill and the first-time use of the Order can be found in a previous article published by my colleague Lynda Towers.
Despite strong and cross-party support within the Scottish Parliament, the UK Government, for the first time, issued an Order under Section 35 of the Scotland Act 1998 to prevent the Bill being forwarded by the Presiding Officer to be given Royal Assent. In simple terms, the Order prevents the Gender Recognition Reform (Scotland) Bill from becoming law. The Section 35 Order was brought forth on the basis that the Bill had serious adverse impact on equality laws in the UK, would undermine women’s rights and that having different gender recognition rules in Scotland and the rest of the UK would create significant complications.
It has now been confirmed that the Scottish Government will challenge Westminster’s decision to block the Bill in court via the Judicial Review process. The petition for Judicial Review is supported by Social Justice Secretary Shirley-Anne Somerville, who stated in April that the Scottish Government would lodge the petition challenging the Section 35 Order as a means of defending Scottish devolution. One of the main arguments for the challenge is that by not doing so, the Scottish Government would be signalling that Westminster can “veto any legislation they disagree with at a whim”.
A three-day hearing will now take place between the 19 - 21 September 2023 at the Court of Session in Edinburgh. The petition will be heard by Lady Haldane, a judge who previously ruled, in the context of the Equality Act 2010, that sex referred to a person’s sex recognised by law, and not simply their biological sex.
During the Bill's nine-month passage through Parliament, it was not amended by the UK Government and offers by the Scottish Government to work with the UK Government on potential changes to the Bill were refused by the Secretary of State. It is on this basis that the Scottish Government say legal challenge is the only option for resolution.
Due to the unprecedented nature of this situation, robust legal testing in the courts would seem the most appropriate next step, not only for those within the legal sector, but for the UK as a whole, as a way of providing clarity on the interpretation and scope of this Section 35 power and resultingly, how it might impact devolution.
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