Gender Reform Bill: Scotland, UK To Begin Constitutional Dispute in Court

Hearing Begins Over Scottish Government's Appeal Against Westminster's Block On Gender Bill

(Photo : Jeff J Mitchell/Getty Images)
EDINBURGH, SCOTLAND - SEPTEMBER 19: Women from Scottish Feminist Network outside the Court of Session on September 19, 2023 in Edinburgh, Scotland. At the beginning of 2023, the UK government employed Section 35 powers to obstruct Scotland's Gender Recognition Reform (Scotland) Bill, intended to allow transgender individuals to alter their legal gender without needing a medical diagnosis. The legal challenge will unfold during a three-day hearing, overseen by Judge Lady Haldane, who, in 2022, rendered a significant ruling that the definition of sex extended beyond 'biological or birth sex.'

In a significant legal showdown, the Scottish Government is poised to challenge the UK Government's decision to block contentious gender reform legislation.

Scheduled to be heard at the Court of Session in Edinburgh, this legal battle centers on the UK Government's use of Section 35 of the Scotland Act, which effectively prevented the Gender Recognition Reform (Scotland) Bill from receiving royal assent, according to Independent.

Scotland Challenges UK's Block on Gender Reform Legislation

The outcome of this case could have far-reaching implications for gender rights and the relationship between the Scottish and UK governments. The Gender Recognition Reform (Scotland) Bill was designed to streamline the process for transgender individuals to self-identify and obtain a gender recognition certificate.

This legislation aimed to make it easier for trans individuals to navigate legal processes associated with gender identity. However, Scottish Secretary Alister Jack utilized previously unused powers of the Scotland Act to halt the bill's progress.

First Minister of Scotland Humza Yousaf announced the legal challenge in April, framing it as a defense of the Scottish Parliament's autonomy against what he deemed a Westminster veto.

At the time, Prime Minister Rishi Sunak asserted that UK ministers had taken their decision after careful consideration, expressing concerns about the potential impact of the Scottish bill on the reserved Equalities Act, as per The Guardian.

The Scottish Government's legal challenge is based on a 22-page petition published in April. This document outlines four key grounds upon which the UK Government's order is being contested:

Material Error of Law: The petition argues that Alister Jack committed a "material error of law" in his decision to block the bill.
Relevance of Concerns: The Scottish Government contends that the concerns raised by the UK Secretary were "irrelevant" to the making of the order.
Inadequate Reasons: It is asserted that the reasons provided by Mr. Jack for blocking the legislation were "inadequate," rendering the order itself "illegal."
Irrationality: Scottish Government attorneys characterize the Scottish Secretary's decision as "irrational."

Advocate General Rebuts Claims of Irrationality in Gender Reform Blockage

In response to these challenges, Lord Stewart, Advocate General for Scotland, published legal arguments last month. These arguments refute the assertion that Alister Jack acted irrationally in blocking the Scottish bill.

Lord Stewart maintains that the Scottish bill modifies the law as it applies to the reserved matters. This legal battle holds significant implications for the rights and recognition of transgender individuals in Scotland.

The Gender Recognition Reform (Scotland) Bill, had it passed, would have marked a notable step forward in simplifying the process for trans individuals to self-identify and access necessary documentation. The outcome of this case will determine whether these reforms will see the light of day.

Moreover, this legal challenge also underscores the ongoing tension between the Scottish and UK governments regarding devolved powers and legislative authority.

It raises questions about the extent to which the UK Government can intervene in matters reserved to the Scottish Parliament and the potential limits of its authority, Sky News reported.