Blocking Scotland’s gender bill ruled as legal

“This is a dark day for devolution”, declared SNP leader Humza Yousaf, after an unprecedented legal battle between Westminster and Holyrood came to a head today, with judges ruling that the UK government acted lawfully in blocking Scotland’s attempts to make it simpler for trans people to change their legal sex.

The first minister mounted the legal challenge after Westminster vetoed Scotland’s Gender Recognition Reform Bill under never-before-used legal powers. Today, Scotland’s supreme civil court rejected Yousaf’s case, saying the UK government has the power to prevent it becoming law under Section 35 of the Scotland Act – the 1998 act which created a devolved parliament in the first place.

The bill, introduced under Nicola Sturgeon, would have removed the need for trans people to be diagnosed with gender dysphoria by a doctor before they are allowed to change their legally-recognised sex. It would also have lowered the age that someone can apply for a gender recognition certificate from 18 to 16.

The legislation received cross-party support in Holyrood, passing by 86 votes to 39 last December. But it sparked internal revolt within the SNP, the most high profile of which was the resignation of Ash Regan, the former community safety minister. 

Shortly after this, the UK government blocked it from becoming law on the basis that it would impact on UK-wide equalities laws.

It is not just trans campaigners who will be disappointed by today’s ruling. For all Scottish nationalists, regardless of their level of interest in gender politics, this is significant because of what is symbolises about the power struggle between Westminster and Holyrood – and the UK’s ability to overrule Scottish laws. 

As to be expected, Yousaf has used the outcome to make a renewed case for an independent Scotland. Lamenting that legislation passed by a majority in Holyrood can be struck down by Westminster, the SNP leader declared: “Today’s judgment confirms beyond doubt that devolution is fundamentally flawed.”

Now, the party has 21 days to decide whether to appeal the ruling to the court’s inner house, and potentially the UK Supreme Court.

The Scottish Greens, who are in a power-sharing deal with the SNP at Holyrood, will be piling pressure on Yousaf to pursue further legal action. Maggie Chapman, the party’s equality spokeswoman, said the ruling was “a democratic outrage, crushing basic rights and equality for some of Scotland’s most marginalised people”.

Yet other members of Scottish parliament – including in the SNP – are reluctant to spend more taxpayer money on an appeal which is expected to have a low chance of success. The case has already cost the Scottish government nearly £230,000 in legal fees.

Aside from the cost and likely outcome, there is perhaps another reason why some SNP members might hesitate to appeal: asking the UK Supreme Court to overturn a decision of Scotland’s highest court would be somewhat hypocritical from Scottish nationalists lamenting the UK government’s ability to veto Holyrood law. 

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