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
michaelpforan
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
SubscribeDr Foran is much more qualified than me to comment on the law and I recommend anybody interested in the legal arguments around gender recognition and equality rights to look up his commentary on t’internet.
What’s equally interesting is how this ruling damages the longstanding SNP political strategy of tacking as far progressive as possible to (i) set up performative conflicts with Westminster and (ii) force Scottish Labour to follow them or be seen to be “siding with Westminster”.
As long as Nicola Sturgeon ruled her party and looked like she could deliver another referendum, she had control of the narrative. Self-ID must have looked like a Grand Slam to her. An ultra-progressive policy beloved of her radical wing and Green Party confreres, which would force nasty Westminster Tories to be seen to be against “kindness”, and render Labour either compliant or impotent.
But she over-reached. The GRR Bill in fact represents one of the key moments where many women (and men) peaked and began to see exactly what was at stake, even on the political left who would normally fall into line behind any policy labelled “inclusive”. And many independence-inclined voters started to wonder about just where she was leading them.
Sturgeon’s political epitaph should simply be that photo of Adam Graham^ looking out from under a blonde wig, his male genitalia visible against the taut material of his leggings.
^ I am usually quite relaxed about pronouns, but there is no power on earth which will compel me to refer to a double-rapist as a woman.
Agree with all of that; however, i think you mean Slam Dunk not Grand Slam!
A Grand Slam in baseball is a home run with the bases loaded.
Ah, not a watcher of baseball, so that makes sense then.
Not American I gather. That is one of the first thing every boy learns as a kid here. It is the dream of every kid at bat.
It’s just big girls rounders
Congratulations to the Scottish Court for being able to interpret existing laws correctly. Until fairly recently, Scotland had a reputation for being upholders of Enlightenment values but the machinations of the SNP has brought that reputation down and it’s been kicked around the gutter. However, this isn’t a victory for feminists, but for biological women.
It can’t be claimed that such victories are part of a “pushback” in any sense, since the ruling isn’t a political one. I’ve no doubt the SNP would like to be in a position to change the way judges are appointed in Scotland’s judicial system after this. We shall see.
But aren’t feminists biological women, too?
Actually, it’s a blow for the significant cohort of self-described ‘feminists’ who are both biologically female yet deny their own existence in favour of ‘inclusivity’.
Actually, yes it is a victory for specific feminist groups who fought this. And they as much women as you are man.
Great news for women of Scotland. Hopefully they will realise this and vote accordingly.
Let’s here it for the women of Wales next
Oh dear – does this class as a common sense ruling?? Great news for all the UK.
This news will have significance beyond the shores of Terf Island (as the UK is known elsewhere). Parents, athletes, feminists, teachers and clinical staff can all feel encouraged that is is possible to retain safeguarding standards for children and women, fairness in sport, and the upholding of the medical principle “First, do no harm”.
People belonging to the above groups in Canada, USA, Australia, Ireland and New Zealand are all in communication with their counterparts in the UK, and look to the UK, Sweden, Finland and now the Netherlands who are all further ahead on this issue, at least in some areas.
An 11 year old girl in the US was assigned to share a bed (not just bedroom, a bed) with a boy who thinks he’s a girl on a school trip recently. This case hit the news, and has been useful in alerting more parents to the dangers of self ID. Here in the UK, the Girl Guides now allows self ID too.
There’s a long way to go before the safety of children and vulnerable women is restored, along with fairness in sports. But many of us are allowing ourselves to enjoy this one solid victory.
It’s ironic that this ruling was made by the same judge, Lady Haldane, who has also ruled that “legal sex” can be a category in law that has nothing to do with sex category at birth.