Scottish Government confirms legal challenge to Westminster's blocking of Gender Recognition Reform Bill

The Scottish Government has confirmed it will take the UK Government to court, after it blocked a bill backed by MSPs from all parties which would make it easier for transgender people to obtain a gender recognition certificate.

Scottish Secretary Alister Jack used Section 35 of the Scotland Act to stop the Gender Recognition Reform (Scotland) Bill going forward to Royal Assent, the first time such a step has been taken since devolution.

Social Justice Secretary Shirley-Anne Somerville has now informed the Scottish Parliament that the Scottish Government will lodge a petition for a judicial review of the use of Section 35.

Use of Section 35 an "unprecedented challenge" to Scottish Parliament

Ms Somerville said: “The Gender Recognition Reform Bill was passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties.

“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.

“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.”

Bill has been a source of controversy and division

The Gender Recognition Reform (Scotland) Bill sparked controversy when it was passed by the MSPs in December.

The proposed change to obtaining a GRC would take away the requirement for trans people to obtain a gender dysphoria diagnosis, and move to a self-ID model already used by a number of other countries.

It would also accelerate the process and lower the age limit to 16, while requiring someone to live in their acquired gender for six months maximum instead of two years.

But critics, including some prominently within the SNP, are concerned the legislation does not provide sufficient safeguards for women-only spaces such as changing room and public toilets.

UK Government to "robustly defend position"

Responding to the Scottish Government's confirmation they will lodge a petition for judicial review, Secretary of State for Scotland, Alister Jack, said:

"The UK Government will robustly defend the decision to prevent the Scottish Government's Gender Recognition Reform Bill from becoming law.

"I made the order under Section 35 of the Scotland Act 1998 after thorough and careful consideration of all the relevant advice and the policy implications.

"I was very clear in the accompanying Statement of Reasons how the Bill would have an adverse effect on reserved matters, including on the operation of the law as it applies to Great Britain-wide equalities protections.

“The use of the power is entirely within the devolution settlement as set out from its inception, with cross party support.”

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