Gender recognition reform: Scottish Government says it will challenge UK veto in court

Humza Yousaf to seek judicial review of Section 35 block of Gender Recognition reform

The Scottish Government has confirmed it will mount a legal challenge to Scottish Secretary Alister Jack’s veto of its gender recognition legislation. Social Justice Secretary Shirley-Anne Somerville said Humza Yousaf’s government would seek a judicial review of the UK Government’s use of Section 35 which has stopped the Gender Recognition Reform (Scotland) Bill going forward to Royal Assent after it was passed by the Scottish Parliament in December 2022.

The legislation, which had support from MSPs of all parties, would make it easier for trans people to change their legal gender, but critics are worried about the impact on women’s rights and single-sex spaces. During the SNP leadership election, the candidates clashed over whether the Section 35 veto should be challenged amid claims there was little chance of winning in court. However. Humza Yousaf, who won the contest and has taken over as First Minister, made clear his own support for a challenge and now Ms Somerville has confirmed a judicial review will be sought.

She said the move by Mr Jack to block the Bill, a step which had never been taken before, was a “dangerous constitutional precedent” which should be legally tested in the courts.

Humza Yousaf's government will challenge the UK Government's block of gender reform in Scotland (Photo: Andrew Milligan, PA)

She said: “The Gender Recognition Reform Bill was passed by an overwhelming majority of the Scottish Parliament, with support from members of all parties. The use of Section 35 is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters and it risks setting a dangerous constitutional precedent. In seeking to uphold the democratic will of the Parliament and defend devolution, Scottish Ministers will lodge a petition for a judicial review of the Secretary of State for Scotland’s decision.

“The UK Government gave no advance warning of their use of the power, and neither did they ask for any amendments to the Bill throughout its nine month passage through Parliament. Our offers to work with the UK Government on potential changes to the Bill have been refused outright by the Secretary of State, so legal challenge is our only reasonable means of resolving this situation. It is important to have clarity on the interpretation and scope of the Section 35 power and its impact on devolution. These matters should be legally tested in the courts.”