The Scottish and UK governments find themselves in a legal tête-à-tête disputing gender reform laws. These laws were initially sanctioned by the Scottish Parliament last year, but were later stalled by UK ministers, continuing concerns about potential effects on equality laws. Undeterred, the Scottish government aims to reverse the decision in a legal tussle at the Court of Session.
The proceedings will stretch over three days, with the potential of escalating to the Supreme Court. UK ministers, for the first time, employed veto powers to obstruct the Gender Recognition Reform (Scotland) Bill. This move incited indignation from Edinburgh ministers, who argue it undermines devolution.
The contested legislation intended to simplify the process of acquiring a gender recognition certificate, thereby changing one’s legally-recognised sex. The proposed version would delegate the task to Scotland’s registrars instead of a UK panel and would eliminate the requirement for a medical report stating a formal diagnosis of gender dysphoria.
Prospective alterations also include reducing the minimum duration an applicant must have lived as their acquired gender, from two years to a handful of months, and lowering the age of application to 16. After an extensive debate, the changes were approved by a margin of 86 to 39 by MSPs, with support from all political parties.
The UK government, however, has flagged each of these changes as the removal of ‘important safeguards’. In their first intervention of this kind since the Scottish Parliament’s inception in 1999, UK ministers utilised Section 35 of the Scotland Act to prevent the bill from receiving royal assent, which is essentially the King’s approval required for it to become law.
This power, embedded in devolution agreements, allows the sovereign parliament at Westminster to exercise a veto under certain circumstances. The move proved highly contentious, accentuating the strained relationship between the London and Edinburgh administrations.
The UK government’s chief concern centres around the intricate interplay of the 2004 Gender Recognition Act and the 2010 Equality Act. UK ministers claim that the Equality Act, which details ‘protected characteristics,’ including sex and gender reassignment, could be disrupted by the proposed reforms. They argue that varying gender recognition processes within the UK could pose significant challenges.
This is illustrated by single-sex associations or clubs, which, under the Equality Act, are permitted to impose exclusive membership directives. The proposed reforms in Scotland could create the need for differing membership rules on either side of the border.
What follows is a legal challenge in the Court of Session for the Scottish Government. Their primary win condition lies in demonstrating that UK Secretary Alister Jack’s intervention was unjust and unreasonable, essentially arguing that the apprehensions raised by the UK government were irrational and are merely speculative and remote.
The fate of the contested reforms will unfurl over a series of court hearings which may span several years. The future is unpredictable given the unprecedented nature of the dispute, with no legal precedents to act as a guide. The case hinges on minute points of law, which hold the key to this gender reform saga for Scotland.