Scottish Government's gender bill case 'arguable but weak' says judge

The Scottish Government’s legal challenge against the blocking of controversial gender recognition reforms will be “very difficult”, a former Supreme Court justice has said.

First Minister Humza Yousaf confirmed on Wednesday that a judicial review is to be sought after the UK Government stopped the Bill, and Lord Sumption warned the “Scottish Government’s legal position is arguable, but I think it is weak”.

Scottish Secretary Alister Jack used powers under Section 35 of the Scotland Act to prevent the Gender Recognition Reform (Scotland) Bill, which was passed by MSPs late last year, from gaining royal assent.

The UK Government argued the legislation, which was introduced to simplify and speed up the process trans people go through to obtain legal recognition in their preferred gender, impacted on UK-wide equalities laws.

Pro-gender recognition reform supporters at a "Rally for Trans Equality" in Edinburgh earlier this year. Picture: Lisa Ferguson.

But SNP ministers have accused the UK Government of seeking to undermine devolution by preventing legislation backed by MSPs from all parties in the Scottish Parliament from becoming law.

Speaking about the Scottish Government’s legal challenge, Lord Sumption told BBC Radio Scotland’s Good Morning Scotland programme: “I think their case is very difficult.”

The case for judicial review will initially be heard in the Court of Session in Edinburgh, but is widely expected to end up in the UK Supreme Court for a final decision.

Scottish Social Justice Secretary Shirley-Anne Somerville said the legal challenge will give ministers important “clarity on the interpretation and scope of the Section 35 power and its impact on devolution”.

But Lord Sumption claimed: “What this means for her, I suspect, is that it is important to be able to point to some way in which Westminster is cramping Scotland’s style. That is of course something the Scottish National Party has always been keen to do.

“Section 35 empowers the UK Government to stop a Scottish Bill becoming law if it modifies the law relating to a matter reserved to Westminster in a way that adversely affects how the law works.

“One of those matters is equal opportunities, and what the UK Government says is the Scottish Bill modifies the law relating to equal opportunities in a way that adversely affects how it works.

“So if you think about it, the result will be that some UK citizens, if this Bill comes into force, will have a different legal gender in different parts of the UK depending on where they happen to be.

“That poses really quite serious legal and practical problems for employers and for public authorities operating equalities legislation on a UK-wide basis.

Analysis: Humza Yousaf's court battle over gender reform is risky but not unexpected

“For example, they will have to discriminate between trans people in Scotland and the rest of the UK on matters like equal pay, gender discrimination, benefits, pensions, all of these things which are subject to UK-wide statutory regimes.

“So on the face of it the Scottish Bill does modify the law in a way that does adversely affect its operation.”

He said the Scottish Government “will have to argue that gender recognition is nothing to do with equal opportunities”, instead saying the legislation is about “defining a person’s legal status”.

But he said the impact of the Bill could “introduce serious problems”, highlighting that Lord Hope, a former deputy president of the Supreme Court, had “described the Scottish Government’s position as ‘hopeless and a waste of public money'”.

Lord Sumption said: “I wouldn’t go that far. I think that the Scottish Government’s legal position is arguable, but I think it is weak.

“Their basic problem is that gender reassignment is a protected characteristic and the Bill alters the way the law works as applied to those.

“The whole scheme of the Scotland Act is that matters that affect only Scotland are devolved to Scotland, matters that affect the whole of the UK remain in the jurisdiction of Westminster. That is the way the Scotland Act works.

“The UK Government is arguing that this is something that affects the way that UK-wide legislation works.”

Section 35: Gender reform laws: What is the Scottish gender reform bill and why is there a constitutional clash after Section 35 order?