UK Govt rebuffs Yousaf challenge to ‘sex-swap’ Bill veto

The UK Government’s decision to veto Holyrood’s gender self-ID Bill is reasonable and lawful, Scotland’s Outer House of the Court of Session has heard.

Representing the UK Government, David Johnston KC told the judge that the Scottish Secretary blocked the Gender Recognition Reform (Scotland) Bill in order to protect the integrity of UK-wide equalities legislation.

The ‘sex-swap’ Bill seeks to allow 16-year-olds to change their legal sex by self-declaration without a medical diagnosis, and reduce the waiting time for adults from two years to just three months.

Lawful and rational

In January, Alister Jack MP – exercising powers under the Scotland Act 1998, Section 35 – prohibited the Presiding Officer of the Scottish Parliament from submitting the Holyrood-backed Bill for Royal Assent.

First Minister Humza Yousaf branded the UK Government’s move a “power grab” and lodged a petition for judicial review.

During the Court of Session hearing, which ended on Wednesday, Mr Johnston dismissed the claim of Scotland’s Lord Advocate, Dorothy Bain KC, that the veto was based on a “policy disagreement” as a “red herring”

The KC countered: “The sole question is whether the Section 35 preconditions are met and whether the discretion was rationally exercised.”

EHRC

“Significant weight”, Mr Johnston argued, should be given to the Equality and Human Rights Commission (EHRC) warning of the impact of the legislation on UK equality law.

He cited a letter from the EHRC to both Governments in which it expressed concern at “the lack of certainty about practical consequences for individuals and society, including in relation to cross-Border issues”.

The presiding judge, Lady Haldane, has indicated that it will take “some time” to write her opinion, after which an appeal to the Inner House of the Court of Session is expected.

Public opposition

MSPs voted by 86 to 39 to approve the Bill last December, despite around two thirds of Scottish voters saying they opposed it.

Political commentators suggested the backlash to the Bill in Scotland led to Nicola Sturgeon’s formal resignation in March.

Journalist Iain Macwhirter, former SNP MSP Joan McAlpine and others argued that championing the unpopular ‘self-ID’ law lost her support in her party and in the country.

A poll conducted for The Scotsman by Savanta ComRes earlier this year found that more than half (53 per cent) of 1,004 Scottish adults surveyed said the SNP–Green coalition should not challenge the UK Government’s decision to block the Bill.