Gender reform: Scottish ministers prepare for first hearing in legal challenge against the UK Government

Gender Reform Bill to be debated at Court of Session

The first hearing in the Scottish Government’s legal challenge against the UK Government’s use of a section 35 order will be held today.

Scottish ministers are seeking to challenge the UK Government for its use of its a section 35 order under the Scotland Act 1998 to prevent the Gender Recognition Reform (Scotland) Bill from gaining royal assent.

This Bill aimed to make it easier for trans people to legally change their gender. It proposed removing the need for a medical diagnosis of gender dysphoria and shortening the amount of time someone needs to live in their acquired gender before they are able to get a gender recognition certificate.

Campaigners on both sides of the GRA debate outside the Scottish Parliament. Image: Lisa Ferguson.

The Bill also proposed lowering the age someone can get one of these certificates from 18 to 16. It was passed by a majority of MSPs in Holyrood in December last year.

However, the Bill was then blocked by the UK Government, which said it impacted on legislation that was reserved to Westminster.

This is the first time the UK Government has issued a section 35 order, making this an unprecedented decision.

According to the House of Commons Library: “If section 35 is exercised, an order (secondary legislation) is laid before the UK Parliament, which prohibits the presiding officer of the Scottish Parliament from submitting a bill to the King for royal assent.”

The main thrust of the issue here is the Gender Recognition Act 2004 is devolved to Holyrood, but the Equalities Act 2010 is reserved to Westminster – and the UK Government argues this Bill encroaches onto this reserved legislation.

Wednesday’s procedure is a preliminary hearing at the Court of Session in Edinburgh to make sure both sides are ready to go ahead with the full case next month.

The UK Government needs to show the Bill passed by MSPs in Holyrood modifies reserved matters and has an adverse effect on the operation of UK-wide reserved law. On the other hand the Scottish Government needs to show Scottish secretary Alister Jack was unreasonable in a legal sense to issue this order, and that it overrides the operation of devolution.

Whichever side loses the case has the right to appeal this decision in the Court of Session.