Scotland’s highest civil court has ruled that the UK Government’s blocking of controversial gender reforms was lawful.
The Scottish Government mounted the legal challenge earlier in the year after Westminster issued a never-before-used Section 35 order of the Scotland Act to prevent the Gender Recognition Reform (Scotland) Bill from receiving royal assent.
The legislation simplifies the process for transgender people to obtain a gender recognition certificate (GRC) and officially change their legally-recognised sex.
In her ruling published on Friday, Lady Haldane, who presided over two days of evidence at Edinburgh’s Court of Session in September, said: “The challenge to the order pronounced under section 35 of the 1998 Act, laid on 17 January 2023, fails.
“In so concluding it is important to recognise the novelty and complexity of the arguments and the sophisticated manner in which those arguments were presented before me and from which I derived considerable assistance.
“I will accordingly sustain the pleas in law for the respondent, repel the pleas in law for the petitioners and dismiss the petition.“
The legislation received cross-party support in Holyrood, passing by 86 votes to 39 last year after MSPs considered 153 amendments to the Bill in a marathon parliamentary session.
Campaigners against the reforms warned the legislation could risk the safety of women and girls while supporters argued it would make the process easier, removing barriers such as seeking a doctor’s diagnosis of gender dysphoria.
Lord Advocate Dorothy Bain, representing Scottish ministers, argued during the hearings that Scottish Secretary Alister Jack used the landmark power because of a “policy disagreement”.
She also argued the order was “unlawful” and was “inconsistent with the constitutional principles” of the UK, effectively preventing Holyrood from passing laws the UK Government did not agree with.
“It is inconsistent with that basic constitutional structure which was enacted by the UK Parliament to recognise a broad and largely unfettered power to block the legislative choices of the Scottish Parliament,” she said at the time.
The key argument put forward by David Johnston KC, acting on behalf of UK ministers, was that the policy could have an “adverse impact” on reserved equality legislation.
He argued the Lord Advocate’s case of a policy disagreement was “simply irrelevant”, adding Westminster “completely accepts that the Scottish Parliament is entitled to make its own legislation and that this is within its devolved power”.
He said Mr Jack had “justified” grounds for using the order, stating it superseded or amended the 2004 Gender Recognition Act by altering the meaning of a GRC by removing the gender dysphoria diagnosis and lowering the application age to 16.
UK laws require applications to be aged 18 to apply for a GRC.
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