The Scottish government has announced that it will launch a legal challenge against the UK government after it triggered Section 35 of the Scotland Act to block a gender reform bill voted for by MSPs last December.
Newly-elected SNP leader and Scotland’s first minister, Humza Yousaf, confirmed that his government will push ahead with legal action and lodge a petition for a judicial review of the UK government’s use of Section 35.
MSPs voted by 86 votes to 39 in favour of allowing transgender people to self-identify, meaning trans people would no longer need to be medically diagnosed with gender dysphoria before obtaining a gender recognition certificate (GRC).
In addition, trans people would no longer need to prove that they’ve lived in their gender identity for two years before gaining recognition, while also dropping the minimum age of applying for the certificate from 18 to 16.
Weeks later, Downing Street made the unprecedented move to block the legislation from being sent to King Charles III, marking the first time in 25 years since devolution that this action had been taken.
“The Gender Recognition Reform Bill was passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties,” Social Justice Secretary Shirley-Anne Somerville said in a new statement.
“The use of Section 35 is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent.
“In seeking to uphold the democratic will of the parliament and defend devolution, Scottish ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision.”
Somerville added: “The UK government gave no advance warning of their use of the power, and neither did they ask for any amendments to the bill throughout its nine-month passage through parliament.
“Our offers to work with the UK government on potential changes to the bill have been refused outright by the secretary of state, so legal challenge is our only reasonable means of resolving this situation.
“It is important to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution. These matters should be legally tested in the courts.”
The UK government has responded by saying it would “robustly defend” the decision it took.
“The UK Government’s decision to block Scotland’s Bill was an unprecedented move.”
Commenting on the decision made by the Scottish government, Colin Macfarlane, the Director of Nations at Stonewall said: “We welcome the announcement that the Scottish Government seeks to challenge the Section 35 order in court.
“The Gender Recognition Reform Bill simply seeks to make the process for legally recognising a trans man or trans women’s gender more respectful and straightforward and would see Scotland joining an ever-increasing number of Nations around the world that have similar systems.
“The UK Government’s decision to block Scotland’s Bill was an unprecedented move and made clear that they see trans people as a threat to be contained rather than people to be treated with dignity and respect.
“We hope that the legal process concludes swiftly and that governments of the UK focus their attention on positive strategies that support LGBTQ+ communities to thrive.”