Scottish Ministers Petition for Judicial Review of the Gender Recognition Reform (Scotland) Bill - Prohibition on Submission for Royal Assent
Status
The substantive hearing, expected to last for 3 days began on 19 September 2023.
Case description
The Gender Recognition Reform (Scotland) Bill was introduced on 2 March 2022 and passed on 22 December 2022. It proposed wide-ranging reforms to the process for obtaining a Gender Recognition Certificate in Scotland (a SGRC), which is currently governed by the Gender Recognition Act 2004. This included: replacing the Gender Recognition Panel with the Registrar General for Scotland; reducing the minimum age of applicants from 18 to 16 years; reducing the current requirement that the applicant have lived in the acquired gender for 2 years to 3 months; and removing the requirement that there be a medical diagnosis of gender dysphoria. A SGRC has effect in other parts of the UK only where specific provision has been made to that effect by the respective governments.
On 17 January 2023, the Secretary of State for Scotland made an order under section 35 of the Scotland Act 1998 (see Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023). Section 35 empowers the SoS to “intervene in certain cases”, namely where a Bill contains provisions which would “make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters”. The effect was to prevent the Bill being submitted for Royal Assent. The SoS considers that the Bill creates two distinct and parallel regimes across the UK; increases the potential for fraudulent applications with a consequent impact on the safety of women; and impacts upon the operation of the Equality Act 2010, the effect of obtaining a GRC being that the person has the protected characteristic of their acquired sex. Further impacts upon reserved matters are said to be on the administration of tax, benefit and State pensions managed by integrated systems across the UK that span reserved and devolved functions. The reserved matters to which the law applies in that respect are “fiscal policy” and “social security”.
The petition for judicial review of the Order seeks its reduction. The petitioners contend that the requirements of section 35 are not met. The alleged adverse effects of the Bill are founded upon material errors of law, the SoS’s concerns are unsupported by evidence and thus irrational, irrelevant considerations were taken into account and the SoS gave inadequate reasons for making the Order. The UK Government submits that Schedule 2 and the Policy Statement provide adequate reasons for making the Order.
The court has granted leave to four interveners to lodge written submissions. The first to third interveners comprise LGBTQ+ and trans-led charities, as well as a researcher on constitutional issues and the fourth intervener is also a charity operating the only trans-specific human rights project.
Link to full case description from Scottish Courts and Tribunal Service
Tweet thread by MBM Policy covering the issues with links to detailed documents
Status
On 8th December 2023, Lady Haldane ruled in favour of the UK government. Read the judgment here
On 19 December 2023, the Scottish government announced that it would not appeal Lady Haldane’s judgment. See here in the Scotsman.
On 22nd January 2024, after losing its legal challenge, the Scottish Government declined to oppose paying the UK Government’s costs for a second time.
Live tweet threads
19 September 2023 - Morning
19 September 2023 - Afternoon
20 September 2023 - Morning, part one and part two
20 September 2023 - afternoon, part one and part two
Abbreviations
J Judge, Lady Haldane
SG Scottish Govt, the Petitioners
DB The Lord Advocate Dorothy Bain, KC
DR Douglas Ross KC
PR Paul Reid UKG
UK Govt, the Respondent
DJ David Johnston KC
CP Christopher Pirie KC
MD Megan Dewart
GRR Gender Recognition Reform Bill
SoS Secretary of State
s35 Section 35 SA Scotland Act
RA Royal assent S
1 Schedule 1 of s35 order
S2 Schedule 2 of s35 order
PS Policy statement
GRC Gender Recognition Certificate
GD Gender dysphoria
PC Protected characteristic
EA Equality Act 2010
GR Gender Reassignment
Press coverage
Selected press coverage is provided in the links below. These articles are provided without comment for the information of readers. Any article must be free to view or an archive version of a paywalled article. If you have coverage to submit, please DM tribunaltweets on X (aka Twitter) with a link.
(For more coverage on the GRR leading up to section 35 ruling go here)
22 Jan 2024
The Scottish Herald - Gender reform: SNP ministers throw in the towel over court costs
9 Dec 2023
BBC - Ministers should not appeal against gender ruling - Forbes
Institute for government: The use of Section 35 of the Scotland Act to block the Gender Recognition Reform (Scotland) Bill
Scottish National - Starry-eyed view of devolution lies in tatters after gender ruling
The Scottish Herald - LGBT groups react to 'distressing' gender reform ruling
Scottish National - Yousaf faces clash with Greens amid SNP calls to ditch gender Bill
8 Dec 2023
BBC: Court says Scottish gender reform block is legal
The Guardian - Scottish court rules UK government veto of gender recognition bill lawful
Sky news - UK government's veto of Scotland's gender reform bill ruled lawful by Scottish court
The National - Court of Session: UK Government CAN block Scottish gender reform bill
STV News - Scottish Parliament defeated by UK Government in landmark court ruling over gender reform law
The Times - Scottish gender reform bill: UK government veto ruled lawful
Politico - Court backs UK government’s veto of Scotland’s gender self-ID plan
Scottish Legal News - Scottish government loses first court battle over gender recognition bill
The Telegraph - UK Government's veto of Nicola Sturgeon's gender reforms ruled lawful
Holyrood - Scottish Government loses legal challenge to Westminster veto of Gender Recognition Reform Bill
Scottish National - Alister Jack issues statement as court rules he can block Scottish gender reform
Scottish National: Humza Yousaf reacts to Court of Session's ruling on gender reform
NationalWorld: Scotland gender reform bill: UK government use of Section 35 order to block Scottish legislation ruled lawful by Court of Session
Express and Star - UK Government acted lawfully when blocking Holyrood gender reforms, court rules
The Scotsman - Humza Yousaf loses court battle with UK Government over controversial gender reforms
Daily Record - Blow for Humza Yousaf as court rules in favour of UK Government in gender reform row
Daily Record - Gender reform defeat is another wake up call for an SNP Government in decline
Scottish Daily express - SNP Government suffer another humiliating court defeat as it loses gender reform case
ITVx - UK Government's veto of Scotland's gender reform bill was legal, court rules
Scottish National - How to read the full Lady Haldane ruling on Scottish gender bill block
Financial Times - Scotland loses legal challenge over gender identity reform
The Spectator - It’s time for Humza Yousaf to end this gender bill farce
Student newspaper - Court rules in favour of UK government veto on Gender Recognition Reform Bill
Mirror - Scotland loses trans court battle against Tories in 'devastating day for equality'
Guardian - ‘Sense of exhaustion’: Scottish trans community reacts to UK veto of gender reforms
Scottish Herald: Gender reform Scotland: GRR court battle explained
The Telegraph - Humza Yousaf should stop fighting hopeless cause of the gender reform Bill
Pink News - Court finds in Tory government’s favour over blocking Scotland’s gender law reforms
Holyrood - The Section 35 appeal was rejected. Now it's time to clarify the Equality Act.
Scottish National - Gender reform bill row: Legal expert explains what happens now
BBC - Why does the Scottish government keep losing court cases?
NBC News - Court upholds U.K. decision to block Scotland’s landmark gender-recognition bill
Unherd - Scotland’s gender ruling is a victory for feminists
NDTV World - UK Government Wins Court Battle Over Scotland's Gender Identity Reform
Reaction - Blocking Scotland’s gender bill ruled as legal
20 September 2023
Guardian - Scotland’s gender reform bill was not blocked due to policy row, court told
The National - 'Irrelevant' if Alister Jack laid Section 35 order over policy dispute
BBC News - UK government defends veto on Scots gender law
PA Media - Ruling in judicial review of gender laws block could take some time, says judge
19 September 2023
BBC - Court clash over move to block Scotland's gender reforms
The National - Court's Section 35 decision will tell us ALL about democracy in the UK
BBC News - UK block on Scottish gender reforms unlawful, court hears
The Guardian - Scottish gender recognition bill would leave UK law untouched, court told
Sky News - Gender reform bill: Scottish and UK governments to go head to head in court
Pink News - Gender reform law: Scottish and UK governments battle in court over Section 35 block
PA Media - Gender reforms block ‘inconsistent with constitutional principles of UK’
The National - We must beware the political ramifications of Section 35 court battle
The National - What to expect from the gender reforms Court of Session hearing
The Courier - Gender reforms: All you need to know as controversial SNP law goes to court
The Irish News - Legal challenge to begin over UK Government's gender reform block
The Guardian - Scotland’s gender recognition reform judicial review: what you need to know
18 September 2023
Scottish Legal - Lucy Hunter Blackburn: Schools, associations and Section 35 – what the Scottish government left out of its argument
Telegraph - Humza Yousaf's gender court battle ‘squandering’ taxpayers’ money, say Scottish Tories