Humza Yousaf loses court battle with UK Government over controversial gender reforms

The Conservatives said the ruling was a ‘humiliating defeat’ for the SNP

Humza Yousaf has been told to drop Scotland’s controversial gender reforms and “stop wasting taxpayers’ money” after losing a high-profile court battle with the UK Government.

The First Minister had challenged a decision by Scottish Secretary Alister Jack to block legislation aimed at making it easier for trans people to change their legal sex.

But the Court of Session in Edinburgh on Friday ruled Mr Jack acted lawfully by using a section 35 order – a never-before-utilised part of the Scotland Act – to prevent the Gender Recognition Reform Bill from gaining royal assent.

First Minister Humza Yousaf. Picture: PA

Lady Haldane’s 65-page judgment is a major blow to Mr Yousaf, who previously insisted fighting Mr Jack’s “undemocratic veto” was a matter of principle. His predecessor, Nicola Sturgeon, had accused the UK Government of a “full-frontal attack” on the Scottish Parliament.

The Scottish Government has already spent around £230,000 on the legal battle, and this will rise further if it decides to appeal. Legal figures previously told The Scotsman a bill of £500,000 was possible if it goes all the way to the UK Supreme Court.

Writing on social media, Mr Yousaf, whose Government has 21 days to appeal the decision, said the judgment “confirms beyond doubt that devolution is fundamentally flawed”. He said: “This is a dark day for devolution.

“Sovereignty should lie with the people of Scotland, not a Westminster Government we didn’t vote for with the ability to overrule our laws. We, of course, respect the court’s judgment and will take time to consider its findings.”

MSPs backed the gender reforms by 86 votes to 39 in December last year. The legislation would have allowed trans people to obtain a gender recognition certificate (GRC) without the need for a medical diagnosis.

It would also have enabled 16 and 17-year-olds to apply for a GRC for the first time, and would have reduced the amount of time a person has to live in their acquired gender before they could be granted the document.

However, Mr Jack argued the move impacted on UK-wide equality law and raised concerns about single-sex spaces and equal pay protections.

In two days of hearings in September, the Scottish Government argued Mr Jack’s decision to block the legislation was unlawful, insisting he had made errors in law and the grounds on which the order had been made were irrational. But Lady Haldane rejected its legal challenge.

Mr Jack said: “I welcome the court’s judgment, which upholds my decision to prevent the Scottish Government’s gender recognition legislation from becoming law. I was clear that this legislation would have had adverse effects on the operation of the law as it applies to reserved matters, including on important Great Britain-wide equality protections.

“Following this latest court defeat for the Scottish Government, their ministers need to stop wasting taxpayers’ money pursuing needless legal action and focus on the real issues which matter to people in Scotland – such as growing the economy and cutting waiting lists.”

Scottish Conservative deputy leader Meghan Gallacher called it a “humiliating defeat” for Mr Yousaf and the SNP.

She said: “Humza Yousaf must now listen to the court, as well as the court of public opinion, not appeal this ruling and ditch the Bill for good. We all want to see the lives of trans people improved, but that can’t come at the expense of the hard-won rights of women and girls.”

Alba MSP Ash Regan, who previously resigned as an SNP minister over the gender reforms, said: “Hundreds of thousands of pounds have already been wasted and it would be unimaginable for the Scottish Government to appeal this decision and then ultimately proceed to a situation of potentially asking the UK Supreme Court to overturn a decision of Scotland’s highest court.

“I resigned from the Government as I simply could not support legislation that is so ill thought-out, opposed by women’s groups across Scotland and a fundamental risk to the safety of women and girls.

“The Scottish Government lost the battle in court and they will further lose the support of the people of Scotland if they keep pursuing this policy. I urge Humza Yousaf to now completely scrap his Government’s gender reforms.”

But Green MSP Maggie Chapman, whose party has a power-sharing agreement with the SNP, said the decision was “a devastating day for equality”.

She said: “It is a democratic outrage, crushing basic rights and equality for some of Scotland’s most marginalised people. It shows the huge limitations and constraints on devolution and confirms that the UK Government refuses to see our trans siblings for the people they really are.

“It is horrible, it is heart-breaking and it is unjust. It makes a mockery of any vote or decision that we as parliamentarians take at Holyrood from now on, if the result is knowing that Westminster will veto anything they don’t like.

“Self-ID is normal and is used in countries around the world. What our Parliament voted for was a small change that would have made a big difference to a vulnerable community. I hope the Scottish Government will consider all options for appeal."

Labour’s shadow Scottish secretary Ian Murray said: “It is disappointing this legalisation ended in the courts, but this ruling should be respected. It is shameful that after years of debate, trans people feel no more protected and women no more reassured.

“This is another demonstration of why both governments have to work together rather than spending taxpayers’ money fighting in courts and pitting communities against each other.”

Colin Macfarlane, director of nations at LGBTQ+ charity Stonewall, said the organisation was “disappointed” by the ruling. “This Bill was one of the most debated in the Scottish Parliament’s history and was passed by a resounding majority of MSPs drawn from all major Scottish parties,” he said.

“This unfortunately means more uncertainty for trans people in Scotland, who will now be waiting, once again, to see whether they will be able to have their gender legally recognised through a process that is in line with leading nations like Ireland, Canada and New Zealand.

“Whatever happens next in discussions with the UK and Scottish governments on this matter, Stonewall will continue to press all administrations to make progress on LGBTQ+ rights in line with leading international practice.”

SNP social justice secretary Shirley-Anne Somerville said: “We note the judgment and will consider its terms. Devolution is fundamentally flawed if the UK Government is able to override the democratic wishes of the Scottish Parliament and veto our laws at the stroke of a pen. The Scottish Parliament passed this Bill with a large majority including members of all parties.”