Scotland gender reform bill: UK government use of Section 35 order to block Scottish legislation ruled lawful by Court of Session

The UK government's decision to issue a never-before-used Section 35 order to block a gender reform bill from becoming law in Scotland has been ruled as lawful by the Court of Session. The order was used earlier this year to block the Gender Recognition Reform (Scotland) bill from reaching royal ascension after the bill was voted in by the Scottish parliament.

The legislation proposed a simplified process for transgender people to legally change their sex and receive a gender recognition certificate. Lady Haldane, who presided over a Court of Session hearing in Edinburgh in September said in her ruling: “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 bill gained cross-party acceptance in the Scottish parliament following a series of votes on the matter. The final vote, held in late 2022, saw it passing by 89 votes to 39. It has become a controversial topic, with trans activists backing the simplification of the process while campaigners against the reforms argued that it could put women at risk. The proposed new process of gaining a gender recognition certificate included the removal of the need for a doctors' diagnosis of gender dysphoria, as well as lowering the age people can change their gender legally from 18 to 16-years-old.

The UK government intervened using a Section 35 order from the Scotland Act, which gives the power to block legislative bills in Scotland "where the legislation is incompatible with international obligations, national security or defence interests; or where the legislation would have “an adverse effect” on reserved (not-devolved) matters", according to the Institute for Government.

Lord Advocate Dorothy Bain, representing Scottish ministers, argued during the Court of Session hearing that Scottish Secretary Alister Jack used the rare order because of "policy disagreement" and that it was "unlawful", adding: “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."

However, David Johnston KC, acting on behalf of UK ministers, argued that the bill could have an "adverse impact" on Westminster's equality legislation. He added that the claims of "policy disagreements" were "simply irrelevant", adding that the UK government “completely accepts that the Scottish Parliament is entitled to make its own legislation and that this is within its devolved power”.