The UK government acted lawfully when it used its previously untested power of veto over the Scottish government’s gender recognition reform bill, a judge at Scotland’s highest court has ruled, in a major legal battle over the twin flashpoints of constitutional powers and gender recognition.
Why were the Scottish and UK governments in court?
Scottish ministers launched the court challenge in April after the UK government blocked a bill, passed by a cross-party majority in the Holyrood parliament last December, that would make Scotland the first part of the UK to introduce a self-identification system for people who want to change their legally recognised sex.
In January, the Scotland secretary, Alister Jack, made a section 35 order under the 1998 Scotland Act, which created the devolved parliament, to prevent the bill going for royal assent. It was the first time this veto had been used and was described by UK government sources as “the nuclear option”.
Both Jack and the UK minister for women and equalities, Kemi Badenoch, have argued the Holyrood bill waters down protections for single-sex spaces and contravenes UK-wide equality legislation by imposing a different regime for one devolved country.
Lady Haldane’s ruling on Friday came after a two-day hearing in September.
What does the Holyrood gender recognition reform bill actually do?
One of the Scottish National party’s flagship bills, it introduces a system of self-declaration for obtaining a gender recognition certificate (GRC). It would remove the need for a psychiatric diagnosis of gender dysphoria and reduce the time someone must have been permanently living in their gender before they can apply, from two years to three months – or six months for 16- and 17-year-olds. The age at which people can apply would drop from 18 to 16.
Proponents of the changes hope they would streamline a process that many transgender people find intrusive and distressing, but not affect the spaces or services they use in their day-to-day lives.
Critics argue that the simplification – also known as self-identification – would fundamentally alter who could access women-only services and leave them vulnerable to abuse by predatory male offenders. Since the bill was passed, a number of high-profile cases have underlined these concerns, in particular that of Isla Bryson, a double rapist who committed offences before she transitioned and whose initial remand in an all-women prison resulted in a public outcry.
But the involvement of Badenoch, a keen participant in culture war issues, in Westminster’s intervention bolstered the suspicion that some ministers wanted to create a political wedge over transgender rights ahead of the next general election.
This week Badenoch caused consternation amongst LGBTQ+ campaigners when she suggested in the Commons that gender-affirming care for children could be considered “a new form of conversion therapy” and announced a “long overdue” update to a list of approved countries from which the UK will accept gender recognition certificates, pledging to exclude those that used a self-identification system.
What arguments were made by both sides?
Setting out arguments on behalf of Scottish ministers, Dorothy Bain, the lord advocate, said the bill would leave UK-wide equality law untouched, and the Westminster government’s reasons for blocking it were “almost entirely unsupported by evidence”.
Bain argued that Jack made his “executive override” based on policy disagreement, and that if the UK government was successful then the minister “could veto practically any act of the Scottish parliament having an impact on reserved matters because he disagreed with it on policy grounds”.
David Johnston KC, acting for the UK government, rejected as “a red herring” the argument that section 35 order was used over a policy row, saying that the principal concern was the interaction between the 2004 Gender Recognition Act – which set up the certification process being reformed by the Holyrood bill – and the Equality Act.
“The changes proposed by the bill amount to a modification of that law because they change the conditions set by the 2004 act for a change of legal sex,” said Johnston.
What are the constitutional implications for the case?
Given this is the first exercise of section 35 powers, this judicial review takes both governments into uncharted territory. The row is likely to play out over months and years, rather than weeks, since the expectation is that the Scottish government’s loss at this initial stage will be appealed to the next level of Scottish court and then to the supreme court in London.
During the SNP leadership contest to succeed Nicola Sturgeon, Humza Yousaf was the only candidate who pledged to keep Sturgeon’s commitment to a court challenge, arguing that not contesting the veto would risk setting a precedent for future Westminster interference.
The Welsh first minister, Mark Drakeford, described the decision to use a section 35 order as “a very dangerous moment” and has since then begun attempts to introduce similar gender ID reforms to the Senedd.
While Downing Street’s approach to devolution has departed from the muscular unionism of the Boris Johnson era, the Scotland secretary has intervened recently in several other pieces of Holyrood policy, including a bottle recycling scheme and efforts to incorporate the UN children’s rights charter into domestic legislation.
On Thursday, the Holyrood parliament finally passed its children’s rights incorporation bill, albeit a narrower version after the UK challenge.
How was the court challenge viewed across the Holyrood parliament and Scottish society?
The SNP suffered its biggest ever backbench revolt at stage one of the bill, with a government minister resigning in order to vote against it. The changes were a key plank of the Scottish Greens’ cooperation agreement with the nationalists, now itself under attack from some SNP MSPs who believe it has mired their party in unpopular policies.
More practically, with polling suggesting that the Scottish public do not prioritise these changes and that support for the SNP is slumping, there are internal concerns that the government is expending political capital at a time when it should be focused on the cost of living crisis.
The subject of gender recognition changes has proved similarly toxic for Labour, with an emerging split between the Scottish and UK parties. Keir Starmer, the UK party leader, said the fierce Holyrood row convinced him that self-identification was “not the right way forward”, while Scottish Labour maintains a policy of demedicalisation for gender recognition.
Many MSPs also privately acknowledge the failure to bring the public with them on this subject, compounded by two horrific sexual assault cases involving transgender women, Bryson and Andrew Miller/Amy George, which came to light in the months after the bill’s completion.
Meanwhile, transgender people in Scotland are left in limbo. Many would have preferred to see better healthcare or policing of hate crimes taking up ministers’ attention. The trans and indeed broader LGBTQ+ community in Scotland has also reported since the start of the year increased hostility online and on the street.
