Today, Scotland’s Court of Session ruled that the UK Government’s veto of the Gender Recognition Reform (Scotland) Bill earlier this year was in fact lawful. In doing so, it rejected every argument put forward by the Scottish Government for its controversial legislation, which would have drastically altered the process by which someone can change their legal sex.
Overall, Holyrood argued that the UK Government’s use of Section 35 (blocking Royal Assent to the Bill) was an impermissible encroachment upon the separation of powers and an attack on the devolution settlement struck by the Scotland Act. The Court rejected this, noting that “far from being an impermissible intrusion upon the constitutional settlement, Section 35 is an intrinsic part of it.”
More specifically, the Scottish Government argued that the motivation for the Order made by Secretary of State for Scotland Alister Jack was political in nature: Scotland’s gender reforms would not adversely affect British equality law. The Court rejected this claim, noting that there was no evidence provided to support it.
The Scottish Government argued that the amendments proposed by the Bill only affect those who can obtain a Gender Recognition Certificate, but do not change how the document works in practice. For that reason, it argued that there would be no modification to the operation of the Equality Act.
This was swiftly dismissed by the Court, with judge Lady Haldane noting that “[s]ince the whole purpose behind the Bill is to widen the category of those who may apply […] it cannot be asserted that the meaning overall of [the term sex in the Equality Act] has not changed, looked at objectively.”
Once it was established that the GRR Bill would modify the operation of the Equality Act, the Court then had to ask whether Jack had reasonable grounds to conclude that this would produce adverse effects on the Act’s application.
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