Whether our MSPs have the legislative nous and political skills to resolve this mess remains to be seen - Susan Dalgety

In a few months’ time, the Scottish Parliament will celebrate its 25th anniversary. It seems only a few years ago that I was in Edinburgh’s conference centre, well past midnight, waiting for the results of the 1997 referendum that would decide whether or not Scotland’s parliament would reassemble after a 300-year hiatus.

The Scottish people said an overwhelming ‘Yes’. So, at 9.30 on Wednesday morning, 12 May 1999, the SNP’s matriarch, Winne Ewing, the oldest of the new cohort of freshly-minted MSPs, took great delight in announcing that "the Scottish Parliament adjourned on the 25th day of March, in the year 1707, is here-by reconvened."

Little did she, or any of her 128 parliamentary colleagues, formal in their business suits, red jackets and white roses, imagine that Holyrood’s first big legal and constitutional battle with Westminster would be over, not tax or defence or even the future of the NHS, but the legal definition of a woman.

On Wednesday, Scotland’s highest court ruled, in the appeal of For Women Scotland v the Scottish Ministers, that the legal definition of a person’s sex is not limited to their biological sex at birth. The judgement was unequivocal – a man with Gender Recognition Certificate (GRC) is legally female and will have the same protections as a woman under the 2010 Equality Act.

Scotland's First Minister Humza Yousaf with Justice and Home Affairs Minister Angela Constance (left) and Deputy First Minister Shona Robison (right) arrive for First Minster's Questions (FMQ's) at the Scottish Parliament this week. Susan Dalgety queries the capabilities of Scotland's elected representatives ahead of the 25th anniversary of the reconvening of the Scottish Parliament. Jane Barlow/PA Wire

Men with a GRC, as Glasgow University legal academic Michael Foran explained, will be classed as women under the eyes of the law. He wrote in Unherd: “Trans women who have GRCs will be classed as women and trans men who have GRCs will be classed as men. They will have a presumptive right to use the services intended for the opposite sex because they are now legally classed as members of that group.”

So far, so straightforward – except that the Scottish Parliament’s Gender Recognition Reform Bill, passed by Holyrood in December last year, changed the rules for obtaining a gender certificate to allow anyone over the age of 16 to obtain one by simply filling in a form and declaring their new sex. The change is simply an administrative tweak, it won’t affect the provisions of the Equality Act, argued Scottish ministers from Nicola Sturgeon down. A claim that the courts have now exposed as, at best, disingenuous.

Within weeks of the Bill’s passage, the UK government pressed the constitutional equivalent of the nuclear button. For the first time in the history of the Scottish Parliament, Westminster used a Section 35 order to veto Scotland’s gender reforms, arguing that they would affect the UK-wide Equality Act. Nationalists shrieked that this was an attack on Scotland’s parliamentary independence, and immediately after his election as SNP leader, Humza Yousaf declared that the Section 35 order was a “power grab”.

He added: “I don’t think they have any right to use that Section 35 power, given that the majority of Holyrood, of course, backed the GRR Bill…my first principle, my starting principle, is to challenge that Section 35 order,” he said before launching a judicial review against the UK government. The courts are currently considering the matter, and Michael Foran and others believe that this week’s ruling strengthens the case in favour of a Section 35 order.

He wrote: “This case clarifies that a GRC is unequivocally not a mere administrative document. Possession of a certificate has wide ranging consequences under the Act. It is therefore increasingly likely that a court will conclude that a Scottish bill seeking to dramatically modify who can obtain one of these certificates does modify the operation of the Equality Act and therefore may engage Section 35.”

But the final resolution of the intense public debate about the clash between women’s rights and those of trans men and women must lie, not with the courts, but with the politicians who created the mess. As the judges said this week, “at its heart are matters of social policy which are best addressed by parliaments.”

Whether the MSPs who now fill the seats once occupied by people like Donald Dewar, Robin Harper and Margo MacDonald have the legislative nous and political skills to resolve this mess remains to be seen.

Only this week, Scottish Green MSPs – zealous defenders of gender reform – are said to have complained about the prospect of a female MSP having an office in the same corridor as them. The party is understood to have raised concerns with the Presiding Officer because they employ transgender staff members.

Ash Regan, the MSP for Edinburgh Eastern, resigned as a government minister last year in protest against the Gender Reform Bill. Last weekend she left the SNP to join the Alba Party. Regan is a well-liked, professional, hard-working female parliamentarian. She is a threat to no-one. As feminist policy expert Lucy Hunter Blackburn said on social media, the reported actions of the Scottish Greens are “beneath contempt”. She argued, with some justification, that the Greens would have happily handed Andrew Miller, the man recently convicted of a very serious sexual assault on an 11-year-old girl while masquerading as a woman, “a piece of paper giving him default legal rights of access to single sex spaces for women and girls.”

This is the sorry state of the Scottish Parliament on the cusp of its 25th anniversary. MSPs acting like mean girls. Controversial social policy that takes no account of views other than those of a tiny but well-connected elite. Holyrood and Westminster in a legal battle over badly-drafted legislation, instead of working together to tackle the cost-of-living crisis.

At Holyrood’s official opening on 1 July 1999, actor Tom Fleming read Ian Crichton Smith’s poem, The Beginning of a New Song.

“Let it be true to itself and to its origins, inventive, original, philosophical, its institutions mirror its beauty; then without shame we can esteem ourselves.” Today’s parliament, shamefully, esteems no-one.