Search

Court Clash Over Move to Block Scotland’s Gender Reforms

gender

Court challenge opens in Edinburgh after UK government blocked a bill making it easier for trans people to change their legal sex.

It is broadly accepted that MSPs were acting within their powers when they passed the bill. What’s in question is how the law interacts with UK legislation, and whether it could have consequences which would echo out across the rest of the UK. That means the Scottish government’s main route of challenge is a judicial review at the Court of Session.

The Gender Recognition Act

Scottish ministers launched this court challenge after the UK government blocked the Gender Recognition Reform Bill passed by a cross-party majority in the Holyrood parliament last December. This bill sought to make Scotland the first part of the UK to introduce a self-identification system for people who want to change their legally recognised sex as reforms would see applications for a certificate handled by Scottish registrars, rather than a UK panel, and would remove the need to obtain medical reports with a formal diagnosis of gender dysphoria.

The plans would also cut the amount of time applicants need to have lived in their acquired gender from two years to a matter of months, and cut the age at which people can apply to 16. After a lengthy debate the reforms were agreed by MSPs by a margin of 86 to 39, with members of all parties voting in favour.

But every one of those changes have been highlighted by the UK government as removing “important safeguards”. Broadly, the issue here is the way that the 2004 Gender Recognition Act – which set up the certification process which is being reformed – is intertwined with the 2010 Equality Act, which MSPs are not allowed to change.

The 2010 Act applies in Scotland, England and Wales, setting out different “protected characteristics” including those of sex and gender reassignment, and underpins the rights and protections afforded to these groups. The UK government argues that the 2010 Act was “carefully drafted” to work alongside the 2004 one, and that it is “highly problematic” to have two different gender recognition systems within the UK.

An example would be a single-sex association or club, which is allowed to have exclusive membership rules under the protections of the Equality Act – for example a support group for women who have been victims of sexual violence. In the UK government argument, such groups might have to have different membership rules north and south of the border; the new rules would “significantly change the profile and number of individuals that associations will be unable to exclude”.

It also argues that groups could be at “greater risk of being found to be operating unlawfully”, and could end up closing down due to perceived risks. A range of other potential issues have also been listed by the UK government – in these cases, law officers tend to chuck in every possible argument in the hope that one of them will stick. These range from the ability of single-sex schools to exclude 16 and 17-year-olds who would now be eligible to change their legal sex, to the administration of UK-wide tax, benefit and pension systems.

They also say that making the process easier could “significantly” increase the risk of fraudulent applications from those with “malicious intent”, which could lead to people “no longer feeling safe in any sex-segregated setting and self-excluding from such settings even though they could significantly benefit from them”.

Hence, in January, the Scottish 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”.

This sparked fury from the Scottish Government which is seeking to overturn that decision with a legal challenge at the Court of Session. On that front, their task is to show that the order has not met the tests set out in the Scotland Act – namely that the bill makes a modification of the law as it applies to reserved matters, and that the Scottish Secretary did not have “reasonable grounds” to believe it would have an adverse effect on the operation of UK-wide law.

There will be three days of legal arguments; whoever loses that case will be entitled to appeal to the next level of Scottish court – the Inner House of the Court of Session and whoever loses that appeal will then have the option of taking the case to the Supreme Court in London, so this case may well play out over a series of hearings over a number of years.

Final thought

It is hard to judge exactly how the arguments will go as there is no precedent to lean on in terms of which parts of the legal test are more important, or how easy it might be to satisfy judges as to what “reasonable grounds” or an “adverse effect” really are. For all of the political rhetoric around this row, it is those points of law which will ultimately decide the fate of these reforms.

Share

Related Topics

Latest

Generative AI in Social Care

Earlier this month, representatives of thirty organisations and individuals working in Adult Social Care met at the University of Oxford, Reuben College, to discuss the benefits and risks of using ‘generative AI’ in social care.

Video Features

How Can we Level Up the UK Sustainably?

Does Democracy Require Proportional Representation?

Marking LGBT+ History Month 2024

How Can Plugging the Skills Gap Support Decarbonisation?

Subscribe to our newsletter for your free digital copy of the journal!

Receive our latest insights, future journals as soon as they are published and get invited to our exclusive events and webinars.

Newsletter Signups
?
?

We respect your privacy and will not share your email address with any third party. Your personal data will be collected and handled in accordance with our Privacy Policy.

Never miss an issue by subcribing to our newsletter!

Receive our latest insights and all future journals as soon as they are published and get invited to our exclusive events and webinars.

Newsletter Signups
?
?

We respect your privacy and will not share your email address with any third party. Your personal data will be collected and handled in accordance with our Privacy Policy.

Never miss an issue by subcribing to our newsletter!

Receive our latest insights and all future journals as soon as they are published and get invited to our exclusive events and webinars.

Newsletter Signups
?
?

We respect your privacy and will not share your email address with any third party. Your personal data will be collected and handled in accordance with our Privacy Policy.

Newsletter Signup

Receive our latest insights as soon as they are published and get invited to our exclusive events and webinars.

Newsletter Signups
?
?

We respect your privacy and will not share your email address with any third party. Your personal data will be collected and handled in accordance with our Privacy Policy.