The Scottish Government has announced it will launch a major legal challenge against the UK Government over its decision to block Scotland’s gender reforms.
Social justice secretary Shirley-Anne Somerville confirmed the court battle on Wednesday afternoon following weeks of legal advice.
First Minister Humza Yousaf described the move by Westminster as an “undemocratic veto”.
In December, the Scottish Parliament passed the Gender Recognition Reform Bill with cross-party, majority support.
A month later, Scottish secretary Alister Jack took the unprecedented decision to issue a Section 35 order to block it, saying he was “concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation”.
Announcing the move, the social justice secretary insisted a court battle is the “only reasonable means of resolving” the conflict.
Somerville said: “The use of Section 35 is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent.
“In seeking to uphold the democratic will of the parliament and defend devolution, Scottish ministers will lodge a petition for a judicial review of the secretary of state for Scotland’s decision.
“The UK Government gave no advance warning of their use of the power, and neither did they ask for any amendments to the bill throughout its nine-month passage through Parliament.
“Our offers to work with the UK Government on potential changes to the bill have been refused outright by the secretary of state, so legal challenge is our only reasonable means of resolving this situation.
“It is important to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution.
“These matters should be legally tested in the courts.”
Writing in a blog post on the SNP’s website after the announcement, the First Minister claimed the “democratic will of Scotland’s Parliament is under attack”.
Scottish Government, he said, has a “duty to defend democracy and devolution”.
Yousaf wrote: “Today, I have announced that the Scottish Government will challenge the undemocratic section 35 veto on the Gender Recognition Reform Bill.
“While we all know there are a range of views on this bill, this Tory government’s veto on devolved matters is not about the substance of the bill, but about the principle of undermining the Scottish Parliament.
“If unchallenged, it sends a signal that the UK Government can veto any legislation they disagree with, at a whim.
“Of course, Scotland’s democracy can only be fully protected with the powers of independence, but we know if you give the Tories an inch, they’ll take a mile and undermine devolution and our Parliament at every given opportunity.”
Prime Minister Rishi Sunak said on Wednesday that the decision to stop the bill from receiving royal assent had been made “after taking very careful and considered advice”.
Speaking to reporters in Belfast, Sunak added: “We had concerns, as the UK Government – the secretary of state – set this out at the time, about how Scotland’s gender recognition act would interact with reserved powers, about the operation of the Equalities Act, the protection of women elsewhere in the UK as well.
“That’s why we took the decision to block the GRR. Obviously, there’s a court process, we will follow that through.”
The Gender Recognition Reform Bill aims to make it quicker and easier for transgender people to change their legally recognised gender.
But some women’s rights campaigners raised concerns about the impact the legislation would have on single-sex spaces for females.
iStockUnder the reforms, the age limit for applications for a gender recognition certificate would be lowered from 18 to 16.
A requirement for a medical report, including a diagnosis of gender dysphoria, would also be dropped.
Applicants for a certificate would have been required to live in their acquired gender for three months (six months for 16 and 17-year-olds) – down from the current requirement of two years.
LGBT rights charity Stonewall welcomed the announcement from the Scottish Government.
Colin Macfarlane, the group’s director of nations, said: “The Gender Recognition Reform Bill simply seeks to make the process for legally recognising a trans man or trans women’s gender more respectful and straightforward and would see Scotland joining an ever-increasing number of Nations around the world that have similar systems.
“The UK Government’s decision to block Scotland’s Bill was an unprecedented move and made clear that they see trans people as a threat to be contained rather than people to be treated with dignity and respect.
“We hope that the legal process concludes swiftly and that governments of the UK focus their attention on positive strategies that support LGBTQ+ communities to thrive.’’
The Scottish Conservative’s deputy leader accused the First Minister of a “painfully transparent attempt” to “divert attention” from the ongoing police investigation into the party’s finances.
MSP Meghan Gallacher said: “Desperate times call for desperate measures, so the beleaguered First Minister has reached for the nationalists’ playbook, and is manufacturing grievance with the UK Government.
“The vast majority of Scots oppose Nicola Sturgeon’s reckless GRR Bill because it compromises the safety of women and allows 16-year-olds to legally change gender.
“Polls also show the public oppose this legal challenge to the Section 35 Order, which the UK Government was forced to issue because the Bill impacts on equalities legislation across the UK.
“Yet Humza Yousaf has chosen to ignore public opinion – not to mention the views of his two SNP leadership rivals – to pursue confrontation with Westminster and appease the extremist Greens in his administration.”
Scottish Labour backed the gender reform bill but there is some disagreement in the party over whether to support Yousaf’s legal challenge.
Former party leader Richard Leonard said the announcement was welcome news.
He said: “The update to gender recognition law passed overwhelmingly by the Scottish Parliament would make life a little easier for one of the most persecuted minorities in society.
“It was both necessary and long overdue, and it must be allowed to stand.”
Meanwhile, Scottish Labour’s equalities spokesperson Paul O’Kane called on the Scottish and UK governments to work together to resolve the issue.
He said: “The election of a new First Minister should have provided a reset moment on this debate.
“Instead, everyone is being failed by the constitutional row that has engulfed this bill.
“Trans people and women are still being failed and the SNP and Tory governments doing nothing to find consensus.
“This issue is too important to be reduced to political point scoring or culture wars.
“A fraught and expensive legal battle could have been avoided if both of our governments had been more willing to work in good faith to deliver a bill that works for everyone.
“The real questions here won’t be answered in the courts – we need to focus on building consensus and public support for a way forward on reform.”
The Scottish Greens, who are in Government alongside the SNP, said the decision is “vital for equality and democracy”.
Equalities spokeswoman Maggie Chapman said: “If the Tories get away with overriding our Parliament on such a clearly devolved area then it will set a dangerous precedent that could be used time and again.
“That is why everyone who believes in equality or devolution must support this challenge and oppose the Tory veto.”
And Vic Valentine, manager of Scottish Trans, said: “For the UK Government to seek to block the Scottish democratic process in this way, simply because they disagree with the welcome decision the Scottish Parliament has made to improve trans people’s lives, is unacceptable.”
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