The Scottish Court of Session, Scotland’s supreme civil court, has ruled that UK ministers acted lawfully in blocking reforms proposed by the Gender Recognition Reform (Scotland) Bill. This legislation aimed to allow Scottish residents to self-identify their gender and was endorsed by the Scottish Parliament in December 2022.
The UK government invoked section 35 of the Scotland Act 1998 to veto this bill, prompting a challenge by the Scottish government in the Court of Session. Secretary of State for Scotland, Alister Jack, utilized the s. 35 order to prevent the bill from reaching Royal Assent, stating that it contradicted equalities legislation in the entirety of Great Britain and, in particular, the Equality Act 2010.
Lord Advocate Dorothy Bain, KC, representing the petitioners, contended in court that two errors were made in the Secretary of State’s usage of s. 35 powers. She stated that the Bill “does not make a modification to the law as it applies to reserved matters, nor does it have an adverse effect on the operation of the law.” Furthermore, with regards to the alleged effect on social security systems, she declared, “it was hard to understand how having a different sex in one part of the UK from another should be insurmountable.”
On behalf of the respondents, David Johnston KC argued against a “policy disagreement”, conveying the concern that “the Bill would have an adverse effect on the operation of the law”, and it is “highly problematic to have two different gender recognition systems within the UK”.
The court ruling announced by the Honourable Lady Haldane, KC, found that the first precondition of section 35 is met, concluding that the Secretary of State for Scotland acted within the law. Therefore, the motion to contest was dismissed, with the caveat that an appeal is possible.
The opposing views and subsequent decision have stirred significant discussions about the balance between devolved powers and national consistency. This ruling is another significant event in an ongoing conversation about the appropriate extent of the devolution of powers, and more importantly, the rights of individuals to self-identify their gender.
For the full details, read the full article at Jurist.