December 8, 2023 - 4:40pm

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.

Here, Holyrood argued that the Court should engage in extensive scrutiny because the UK Government was in breach of the devolution settlement and was motivated by a policy disagreement, not concern for negative effects. Again, the Court rejected this contention as baseless. Jack had a degree of discretion to use the Section 35 power, if he met the legal tests set out in the Scotland Act: “Section 35 does not […] impact on the separation of powers or other fundamental constitutional principles. Rather, it is itself part of the constitutional framework.” That constitutional and political backdrop must be accounted for when assessing the lawfulness of the use of the power.

Finally, the Scottish Government argued that it was unreasonable for Jack to conclude that the GRR Bill would adversely affect the operation of the Equality Act by introducing self-ID. It suggested that the Scotland Minister did not adequately familiarise himself with the relevant facts and material before making the Order. The Court rejected this claim, too, noting that Jack had ample material before him and the Holyrood argument that this could not be trusted because it was compiled by Westminster’s Equality Hub was baseless.

The Scottish Government argued that the risk of fraudulent applications was an irrelevant consideration. This was also rejected, on the grounds that it would have been reasonable and lawful for the Secretary of State to consider when deciding whether to block the Bill or not.

The fundamental question the Court had to ask at this point was whether Jack acted reasonably: it concluded that that he had. Other decision-makers may have come to a different conclusion, but that does not render his decision unlawful.

Overall, this was a resounding defeat for the Scottish Government. What’s more, it was a vindication of the concerns that have been raised by feminist organisations for years and which have been, until recently, shamefully ignored.

Michael Foran is Senior Fellow, Policy Exchange and Lecturer in Public Law, University of Glasgow