Scottish government paves way for legal challenge to Westminster block on gender reform bill

The Scottish government said on Wednesday that it will challenge the veto of its gender reform bill by the UK, paving the way for a legal showdown between the two administrations.

The Gender Recognition Reform Bill makes it easier for people to change their legally recognised gender.

Scotland’s social justice secretary Shirley-Anne Somerville said that by trying to block the bill, the UK government was setting a “dangerous constitutional precedent”. She added:

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.

Overreach

The legislation was passed by the Scottish parliament in December. It makes it easier and faster for people to officially change their gender, dropping the requirement for a medical diagnosis of gender dysphoria. It also allows people aged 16 and 17 to change their legal gender.

Earlier this year, the Canary’s Alex/Rose Cocker explained that the UK government was likely overreaching with its interference in Scottish parliament. Cocker demonstrated that the use of section 35 was based on an assumption, namely:

It is the assumption that cis preferences matter more than trans preferences – and more than trans lives. More specifically, it is the assumption that transphobic cis preferences matter more than inclusive beliefs, either cis or trans.

The UK government’s intervention, Cocker argued, is an attempt to protect avenues for the discrimination of trans people:

This is what the use of Section 35 in this instance boils down to. Gender recognition reform in Scotland may make it that much more difficult to discriminate against a transgender individual. As we have seen, Westminster tacitly assumes throughout its policy paper that this ability to perpetuate transphobia at the state level deserves protection. Moreover, it deserves protection at the cost of freeing trans lives of the traumatic bureaucracy they face.

Response from public figures

Director of nations at Stonewall Colin Macfarlane said:

The news that the Scottish Government intends to challenge the UK Government’s veto of the GRR Bill in court is welcome. The Bill was passed by an overwhelming majority of MSPs from across every political party in the Scottish Parliament. Read our statement below.
👇🏻👇🏻 https://t.co/PdjgZm9VcA

— colin macfarlane (@Cmacf76) April 12, 2023

And Maggie Chapman, Scottish Green MSP for North East Scotland, said:

Trans rights are human rights. It is right for @scotgov to challenge the UK gov. We must fight for equality and our democracy.

We voted overwhelmingly for Gender Recognition Reform. We cannot allow the lives of trans people to be used as a pawn in Westminster’s culture war. pic.twitter.com/u46UTQ5n6X

— Maggie Chapman MSP (@MaggieChapman) April 12, 2023

Meanwhile the Scottish National Party (SNP) minister for equalities, migration and refugees Emma Roddick tweeted:

The Gender Recognition Reform Bill was passed in the Scottish Parliament after hours upon hours of scrutiny and many amendments.

It is vital that @theSNP Government is challenging Westminster’s shameful section 35 order and standing up for Scottish Democracy. https://t.co/xkkZyh5IPt

— Emma Roddick MSP (@EmmaRoddickSNP) April 12, 2023

The looming standoff over the gender law ratchets up Westminster’s tense relations with the Scottish government, which last year saw the SNP’s efforts to hold a new independence referendum stymied by the UK Supreme Court.

The Scottish government has been clear that the bill will not impact the UK’s Equality Act. Sommerville said:

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.

Featured image by The Meat Case/Wikimedia Commons via CC 2.0, resized to 770×403

Additional reporting by Agence France-Presse