Scottish Government suffers 'humiliating' defeat as judge throws out controversial gender self-ID bill appeal | The SunDecember 8, 2023
THE SCOTTISH Government has suffered a 'humiliating' defeat after a judge backed the UK Government's bid to block Scotland's controversial gender self-ID bill.
Lady Haldane delivered her written opinion this morning after Holyrood ministers challenged a Westminster veto over the plan at the Court of Session in September.
However, today’s ruling may not mean the end of the saga – with the Scottish Government able to appeal, ultimately to the UK Supreme Court.
MSPs passed the Gender Recognition Reform Bill in December but Scottish Secretary Alister Jack blocked it from becoming law, arguing it would affect how laws operate down south.
SNP ministers challenged the veto, although polls have suggested the planned legislation bombs with most Scots.
A hearing at the Court of Session took place in September and saw the Scottish and UK governments clash over the controversial legislation.
The Scottish Government had suggested a “policy disagreement” lay at the heart of the case, and that the veto – under Section 35 of Scotland Act, which underpins devolution – was “irrational” and “unlawful”. SNP ministers also argued the veto was trampling on devolution.
But in her ruling, Lady Haldane, who presided over two days of evidence at Edinburgh's Court of Session in September, said: "The challenge to the order pronounced under section 35 of the 1998 Act, laid on 17 January 2023, fails.
"In so concluding it is important to recognise the novelty and complexity of the arguments and the sophisticated manner in which those arguments were presented before me and from which I derived considerable assistance.
"I will accordingly sustain the pleas in law for the respondent, repel the pleas in law for the petitioners and dismiss the petition."
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However, the Scottish Government could now appeal to the UK Supreme Court – meaning the process could drag on for months or years.
Scottish Conservative MSP and deputy leader Meghan Gallacher said it was time to abandon the controversial bill.
She said: “This is a humiliating defeat for Humza Yousaf and the SNP, who have once again squandered taxpayers’ cash on a self-serving but doomed court case.
“Their reckless Gender Recognition Reform Bill is deeply unpopular with the Scottish public because its self-ID principle compromises the safety of women and girls – as the case of a double-rapist being sent to a female prison demonstrated.
“In addition, the Bill impacted on equalities law south of the border, which is why the UK Government had no option but to issue a Section 35 Order.
“Rather than taking that as a cue to redraft their flawed bill, the SNP dug their heels and turned an issue of women’s safety into another constitutional grievance – a cynical tactic which has backfired today.
“Humza Yousaf must now listen to the court, as well as the court of public opinion, not appeal this ruling and ditch the Bill for good. We all want to see the lives of trans people improved but that can’t come at the expense of the hard-won rights of women and girls.”
Secretary of State for Scotland, Alister Jack, said: “I welcome the Court’s judgment, which upholds my decision to prevent the Scottish Government’s gender recognition legislation from becoming law.
“I was clear that this legislation would have had adverse effects on the operation of the law as it applies to reserved matters, including on important Great Britain-wide equality protections
“Following this latest Court defeat for the Scottish Government, their ministers need to stop wasting taxpayers’ money pursuing needless legal action and focus on the real issues which matter to people in Scotland – such as growing the economy and cutting waiting lists.”
Why is the gender self-ID bill so controversial?
The Holyrood plan aims to allow anyone aged 16 or over to change sex on their birth certificate in a six-month process, simply by signing a legal declaration.
Current UK-wide rules mean a gender ID change can only be granted to over 18s with a medical diagnosis of gender dysphoria, and after two-years living in a new gender.
Backers argue the process needs to be simplified as it’s an ordeal for trans people, but opponents argue women-only spaces could be put at risk and predators could exploit the system.
The Bill passed in the week before Christmas last year after years of parly feuds over the issue.
Backers hailed the Bill as a major step forward for trans people, arguing it would reduce their torment compared to the current two-year process for ages 18 and over where a medical diagnosis is needed.
But critics warned it could lead to predators accessing female-only spaces, and are angry about the principle of male-bodied people legally becoming women.
A series of proposed changes to the law – including a ban on those awaiting trial for sex attacks changing gender – were narrowly rejected in a marathon two-day Holyrood session leading up to the final vote.
YouGov polling last December, as the Bill reached its final stages, found 60 per cent are opposed to plans to remove the need for a diagnosis of gender dysphoria before allowing people to change the sex on their birth certificate.
The poll for the Times Scotland showed just 20 per cent of voters were In favour of the controversial change, with 20 per cent unsure.
It also found the plan to lower the age threshold from 18 to 16 met with even greater opposition, with 66 per cent against, 21 per cent in Favour, and 13 per cent unsure.
And 59 per cent were against shortening the time limit from two years to six months, compared to 21 per cent in favour, and 20 per cent who were unsure.
MSPs passed the Gender Recognition Reform Bill by 86 to 39 in December, but Mr Jack stopped it becoming law in January with the first-ever order under Section 35 of devo laws, arguing it would adversely affect the operation of UK-wide equality law.
At court in September, Scotland's top law officer, Lord Advocate Dorothy Bain KC, said the veto was based on an error in law, and was “irrational”.
Ms Bain argued the issue boiled down to a "policy disagreement".
But David Johnston KC, for the UK Government, said this was a "red herring".
He said: "The sole question is whether the Section 35 pre-conditions are met and whether the discretion was rationally exercised.”
And he said Mr Jack had made a "good faith attempt to make a decision".
Mr Jack blocked the legislation in January using Section 35 of the Scotland Act.
The order can be made using the law underpinning devolution if a Bill is deemed to negatively impact on policy areas reserved to Westminster.
Mr Jack claims that having two gender recognition systems in the UK risks "significant complications".
The UK Government also raised concerns about the safety of women and girls due to the "significantly increased potential for fraudulent applications to be successful".
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The court case has also sparked criticism from the SNP’s rivals over the costs, which experts have said could reach around £500,000 for the Court of Session stage alone.
In November, the Scottish Government said it had spent a total of £227,866.49, with £221,347.49 on external counsel and £6,519 of court fees. The UK Government's costs have yet to be revealed.
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