Scotland to challenge UK block on gender reformson April 12, 2023 at 12:20 pm

The Scottish government is to launch a legal challenge to Westminster’s block on its controversial gender reforms.

The proposals, which would allow people in Scotland to self-identify their sex, were passed by the Scottish Parliament in December last year.

But they were blocked by the UK government over their potential impact on UK-wide equality laws.

First Minister Humza Yousaf has previously described that move as an “undemocratic veto”.

He was the only one of the three candidates in the SNP leadership contest who backed taking legal action in an attempt to overturn the block.

His predecessor, Nicola Sturgeon, had described the block as a “full-frontal attack on our democratically-elected Scottish Parliament” and that legal action was “inevitable”.

Shirley-Anne Somerville, Scotland’s social justice secretary, said the Gender Recognition Reform (Scotland) Bill had been passed by an “overwhelming majority of the Scottish Parliament, with support from members of all parties”.

She said the block by the UK government was an “unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters”.

Ms Somerville added: “To uphold the democratic decision of the Parliament, and ensure proper protection of devolution, Scottish Ministers will now lodge a petition for judicial review of the Secretary of State’s decision.”

She is expected to make a statement to the Scottish Parliament after the Easter break setting out details of her plans for a court challenge.

The gender reforms have been divisive within the SNP, with another of the leadership candidates, Ash Regan, resigning from the government last year over her fears about their impact on safeguards for women and girls.

Shortly after the reforms were passed, double rapist Isla Bryson – who changed gender after being arrested for attacking two women – was remanded to a women’s jail.

Bryson was subsequently moved to a male prison after the case sparked widespread anger.

Mr Yousaf has previously said he would only launch a court challenge to the UK government’s block if he was given legal advice that it stood a chance of succeeding.

But former Supreme Court judge Lord Hope has said the Scottish government’s chances of winning a court case are “very low”.

The former deputy president of the Supreme Court said the Scottish legislation “most certainly does” impact on the Equality Act 2010 and the existing Gender Recognition Act 2004, which currently apply across Great Britain.

And he said it was difficult to see how a court would not agree that Scottish Secretary Alister Jack had “acted reasonably” in blocking the reforms through the use of a Section 35 order, which prevents the legislation receiving royal assent.

Former SNP minister Alex Neil told BBC Scotland earlier on Wednesday that “every lawyer I have spoken to has told me we don’t have a cat in hell’s chance of winning” a legal battle.

He said Mr Yousaf should instead focus on reintroducing the legislation after its “deficiencies” had been addressed.

He’s barely got his feet under the table at Bute House, but Humza Yousaf has already been pitched into a constitutional showdown with the UK government.

There is an extent to which the new first minister has been painted into a corner here. He only had until Monday to decide whether to challenge the UK government’s unprecedented veto of Holyrood’s gender reforms.

His SNP leadership campaign also promised to maintain the partnership with the Greens – and anything short of a full-throated defence of the reforms would have seen them walk.

But Mr Yousaf has also signed up to this fight completely voluntarily.

He deliberately founded much of his leadership platform on social justice issues, and said he would continue the agenda started by Nicola Sturgeon.

And while crafting his own identity as first minister, he will not want to start by shying away from a confrontation with UK ministers on the topic of Holyrood’s powers.

It is a risky strategy given how this issue has divided his party. But this is a battle Mr Yousaf is now fully committed to.