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

Rishi Sunak has become the first Prime Minister to use a Section 35 mechanism after the UK Government triggered Section 35 of the Scotland Act to block Scotland’s gender recognition law.

Sunak has become the first Prime the first Prime Minister to use the legal power to block a bill passed in Holyrood issuing a Section 35 order in a move which many have branded as an attack on Scottish democracy and “the nuclear option”.

Scottish Secretary Alister Jack said he will make an order under Section 35 of the Scotland Act 1998 to stop the Gender Recognition Reform (Scotland) Bill from going forward for royal assent.

UK equalities minister Kemi Badenoch said when the bill passed that she has concerns about legal divergence between Scotland the rest of the UK.

Rishi Sunak could be set for a major clash with the Scottish Government, with multiple reports suggesting that he will move to block Scotland’s gender recognition law this week.

Humza Yousaf has said he would “very imminently” confirm if he will launch a legal battle with the UK Government after it blocked a Bill backed by MSPs which would have made it easier to change gender.

Here’s everything you need to know from the history of the bill, who voted for it in the Scottish Parliament, and a look at a Section 35 order and why is it controversial?

What is Scotland’s Gender Recognition Reform Bill?

The main element of the Gender Recognition Reform (Scotland) Bill is to make it easier for trans people to obtain a gender recognition certificate (GRC) by removing the requirement for a diagnosis of gender dysphoria.

It will also lower the minimum age for applicants from 18 to 16 and drop the time required for an applicant to live in their acquired gender from two years to three months – six for people aged 16 and 17 – though with a subsequent, three-month reflection period.

Did the Gender Reform Bill have cross-party support in the Scottish Parliament?

The SNP’s Ash Regan dramatically quit the government in protest at the Bill, as nine of the party’s MSPs either abstained or voted against stage one of the Bill.

Others in the SNP, like MP Joanna Cherry, had longstanding opposition to the process of gender recognition reform.

Most Conservative MSPs were opposed to the Bill, with exceptions being Jamie Greene and Dr Sandesh Gulhane.

Scottish Labour were largely in favour, but some MSPs were in the opposition camp during debates on the amendments.

Scottish Green and Lib Dem MSPs were in favour of the new law.

The bill passed through the Scottish Parliament by 86 votes to 39.

Why have the UK Government blocked Scotland’s Gender Recognition Reform Bill?

Announcing his decision Alister Jack said: “After thorough and careful consideration of all the relevant advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation.”

He insisted this was the “necessary and correct course of action” and that the changes in the Scottish legislation could have an “adverse impact” on existing equalities laws.

In response, Nicola Sturgeon tweeted: “This is a full-frontal attack on our democratically elected Scottish Parliament and its ability to make its own decisions on devolved matters.”

She pledged the Scottish Government would “defend the legislation and stand up for Scotland’s Parliament”.

Holyrood Social Justice Secretary Shona Robison said the UK Government’s move to block the Bill has made a dark day for trans rights.

In response to the announcement, Ms Robison said: “The use of Section 35 of the Scotland Act to stop the GRR Bill from proceeding to Royal Assent is an outrageous decision.

“This is a procedure that has never been used under nearly 25 years of devolution and is contrary to a Bill that was overwhelmingly passed by the Scottish Parliament by members of all parties.

“This is a dark day for trans rights and a dark day for democracy in the UK.

“As the First Minister said, this is a political decision that is more in keeping with UK Government’s contempt for devolution and the Scottish Parliament.”

Scottish Conservative leader Douglas Ross defended the move by the UK Government saying: “I would say a majority of voters, when they’re polled on this, oppose this legislation.

“They oppose the Scottish government plans to do this.

“They can’t understand why Nicola Sturgeon rushed it through the Scottish Parliament.”

What is a Section 35 order

Section 35 is simply one section of the Scotland Act, which was passed in 1998 and which established the devolution settlement largely as we know it today, granting powers to the Scottish Parliament.

The section gives the UK Government the power to block certain bills passed by the Scottish Parliament from gaining royal assent, but only under certain and limited conditions.

Royal assent is crucial for bills to become law. Any piece of proposed legislation that has passed all stages in the law-making process must undergo the formality of gaining royal assent – the monarch’s agreement to make the bill an act.

Under Section 35 the UK Government can legally intervene to block royal assent for a bill that a Secretary of State “has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security”.

The Government can also legally take action if it sees a bill as making modifications to the law as “it applies to reserved matters”.

Under such a scenario, ministers in London must have “reasonable grounds” to believe that any proposed legislation would have an “adverse effect on the operation of the law as it applies to reserved matters”.

This means that a bill can be blocked if the Government thinks it would clash or conflict with the prevailing UK Government policy as it applies to reserved matters, even if the proposed legislation falls within the powers granted to Holyrood.

Why is Section 35 controversial?

The power has never been used before and to Government critics it would be an undemocratic intervention by London to override the decision of elected representatives in Edinburgh, effectively undermining devolution.

The move would likely launch a constitutional clash between Mr Sunak’s Government and the Scottish administration, just as Nicola Sturgeon and the Scottish National Party make another push for independence.

What options are available to the Scottish Government after Section 35?

The Scottish Government has said it would “vigorously” contest any attempt to block the bill becoming law.

The issuing of the Section 35 could result in legal action against Mr Sunak’s Government, leading to what could be another protracted court battle between Edinburgh and London.

LGBTQ+ charity Stonewall has called such an outcome a “nuclear option” which could turn a debate about transgender rights and gender recognition into a broader row over the devolution settlement.

What have LGBTQ+ groups said following the move?

Nancy Kelley, chief executive of Stonewall, said prime minister Rishi Sunak is using trans people’s lives as “a political football”.

In a statement, she said: “This is the nuclear option. It is the only time that Section 35 of the Scotland Act has been used since 1998, in an unprecedented move which significantly undermines the devolution settlement and will unlock constitutional and diplomatic strife.”

She added: “It is a matter of grave and profound regret that the Prime Minister has allowed trans people’s lives to be used as a political football.

“This is not governing with compassion.

“These are not the actions of a government that can stand on the international stage as a credible defender of LGBTQ+ rights.

“We hope that the legal process concludes swiftly and that governments of the UK focus their attention on positive strategies that support LGBTQ+ communities to thrive.”

Scottish Trans, a trans equality group, also condemned the UK Government’s announcement on Monday.

Manager Vic Valentine said: “The Bill as passed would introduce a simpler and fairer way for trans men and women to be legally recognised as who they truly are, allowing them to live with the dignity we all deserve.

“It was passed by the Scottish Parliament by 86 votes to 39, with the overwhelming support of the SNP, Labour, the Greens and the LibDems.

“That followed years of consultation and lengthy Parliamentary consideration and debate. The Bill covers matters that are devolved to the Scottish Parliament and its consequences were considered by MSPs in great detail.

“For the UK Government to seek to block the Scottish democratic process in this way, simply because they disagree with the welcome decision the Scottish Parliament has made to improve trans people’s lives, is unacceptable. We fully expect the Scottish Government to challenge this in the courts.”

Mr Jack, who has written to Ms Sturgeon and Holyrood’s Presiding Officer Alison Johnstone about the matter, said “transgender people who are going through the process to change their legal sex deserve our respect, support and understanding”.

He said: “My decision today is about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters.

“I have not taken this decision lightly.

“The Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales.

“I have concluded, therefore, that this is the necessary and correct course of action.”