Scotland supreme civil court rules UK government acted lawfully in blocking Gender Recognition Reform Bill News
Reinhold Möller, CC BY-SA 4.0, via Wikimedia Commons
Scotland supreme civil court rules UK government acted lawfully in blocking Gender Recognition Reform Bill

The Scottish Court of Session, Scotland’s supreme civil court, ruled on Friday that UK ministers acted lawfully when they blocked reforms proposed by the Gender Recognition Reform (Scotland) Bill. The Bill sought to allow people of Scotland to self-identify their gender and was passed in Scottish Parliament in December 2022.  The UK government previously invoked section 35 of the Scotland Act 1998 to veto the bill, an action that was challenged by the Scottish government at the Court of Session.

Alister Jack, Secretary of State for Scotland, applied for the s. 35 order to block the bill from reaching Royal Assent. He argued that the bill was incompatible with equalities legislation in Great Britain, in particular the Equality Act 2010. The move to block the bill from becoming law marked the first time in UK history that the UK government used the 1998 Act to veto legislation. S. 35 grants the “power to intervene in certain cases” where the Secretary of State has reasonable grounds to believe the bill is “incompatible with any international obligations, or the interests of defence or national security.”

The argument submitted to the court by the Lord Advocate Dorothy Bain, KC, on behalf of the petitioners was that the Secretary of State has made two material errors in his usage of s. 35 powers. Firstly, that the Bill “does not make a modification to the law as it applies to reserved matters, nor does it have an adverse effect on the operation of the law.” Second, that regarding the alleged effect on social security systems, there are “no gender specific provisions in the UK tax code, HMRC systems were able to accommodate differences in the law in different parts of the UK, and therefore it was hard to understand how having a different sex in one part of the UK from another should be insurmountable.”

Bain further argued that the S. 35 power was used because of a “policy disagreement” and that its usage was “inconsistent with the constitutional principles of the UK” because it blocked Scotland from passing laws that the UK government disagreed with.

David Johnston KC, on behalf of the respondents, argued that this matter was not a “policy disagreement” and instead was a concern that “the Bill would have an adverse effect on the operation of the law”. He argued that it is “highly problematic to have two different gender recognition systems within the UK”.

The official ruling given by the Honourable Lady Haldane, KC, states that the first precondition of section 35 is met and the section is therefore engaged, as “the words ‘full gender recognition certificate’ will no longer mean the same thing as they do currently”. Therefore, the ruling concludes that the Secretary of State for Scotland acted lawfully, and Lady Haldane dismissed the respondent’s motion to challenge. The decision can be appealed.

THIS DAY @ LAW

UK parliament rejected J.S. Mill's proposal to give women the vote

On May 20, 1867, the British Parliament rejected by 196-73 an amendment to the 1867 Reform Act presented by John Stuart Mill that would have permitted women to vote. Review Mill's 1869 work The Subjection of Women.

Supreme Court applies Free Exercise Clause to state governments

On May 20, 1940, the United States Supreme Court held that the Free Exercise Clause of the First Amendment applied to state governments in Cantwell v. Connecticut under the incorporation doctrine, which applied the protections of the Bill of Rights to state governments through the Due Process Clause of the Fourteenth Amendment. Learn more about the Incorporation Doctrine from the Cornell Law Schools' Legal Information Institute.