The Scottish government will effectively be taking the UK government to court tomorrow, on 19 September. The reason: a hugely controversial gender recognition bill that aims to make it easier for a person to change gender legally.
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In December 2022, Members of the Scottish Parliament voted on the Scottish government’s Gender Recognition Reform Bill. Despite some opposition, the Bill was passed by the majority of MSPs with 86 votes to 39.
However, only a month later in January 2023, Scottish Secretary Alistair Jack vetoed the Bill. For the first time in 24 years of Scottish devolution, a Section 35 order was issued. Now, the Scottish government will challenge this decision in a much-anticipated three-day hearing from 19 to 21 September.
Why this gender reform Bill is so controversial
There were three main points to this controversial Bill. Firstly, it dramatically reduced the amount of time a trans person would need to live as their acquired gender from 2 years to 3 months. Secondly, it lowered the age at which a person could apply for a gender recognition certificate from 18 to 16, which is also the age of consent in Scotland. Thirdly, it removed the need for a medical diagnosis of gender dysphoria before undergoing the process of legally changing your gender.
There was a lot of support for the Bill which many see as progressive, there was also a lot of opposition. When it was passed, there was a round of applause in Holyrood’s public gallery - something that is usually forbidden.
However, there were also furious reactions from those opposed to the reform, most notably from a woman who started to quack at MSPs like a duck and another who lifted her skirt to flash her 'gender' at them, as reported by The Scotsman. The Scottish Conservatives did not support the Bill because they believed it would have a negative impact on women-only spaces.
The blocking of the Bill
Jack said the UK government was worried the Bill would have an effect on single-sex spaces, public sector equality and equal pay. There were also concerns it would lead to more fraudulent applications for gender recognition.
The Scottish government argues Jack's reasoning is flawed and inadequate. The court challenge will begin tomorrow and is expected to cost taxpayers hundreds of thousands of pounds, according to The Herald.
First Minister Humza Yousaf has come under fire for saying it’s not about the Bill, but more about the ‘principle’ of the matter. He argued doing nothing would send a ‘signal that the UK government can veto any legislation they disagree with at a whim’. Many are challenging this, reminding him that a 3-day court case is a very expensive way to make a point.
What are the possible outcomes?
If the Scottish government is successful in overturning the Section 35 order, the Bill will become law. As Trans Scotland outlines, if they are unsuccessful, there are two main possible outcomes. The Scottish and UK governments could negotiate changes to the Bill, though this seems unlikely under the current government as they have refused to discuss this, or the Bill could be withdrawn entirely.
There is also a chance that whichever side loses will decide to appeal.
The Scotsman: Gender court battle: Scottish Government goes to court over gender reforms as SNP's Ash Regan says case is 'fundamentally flawed'
The Herald: Humza Yousaf: Gender court case 'not actually about the legislation'