Gender reform, Section 35 and its legal challenge - explained

The UK Government’s use of Section 35 powers and the Scottish Government’s decision to challenge it pushes us into unchartered waters. What do we know so far? 

Let’s go back to the start. How did this happen?

After a torrid few days in parliament involving over 150 amendments, many points of order and several delays, MSPs backed the Gender Recognition Reform Bill on 22 December 2022 by 86 votes to 39. Most of the bill’s opponents had expressed concerns about unintended consequences on women – most notably, access to single-sex spaces.

There had been reports in the run-up to the final debate that the UK Government could consider intervening. Just 20 minutes after the bill passed, the Scotland Office released a statement. It confirmed the UK Government would “look closely” at the bill, including “ramifications for the 2010 Equality Act and other UK-wide legislation”. Actions to be considered, it said, went “up to and including a Section 35 order stopping the bill going for Royal Assent”.

Less than a month later, on 16 January 2023, Scottish Secretary Alister Jack officially confirmed he would make an order under Section 35 of the Scotland Act. That order was formally laid the next day.

So why did the UK Government step in?

In his initial statement, Jack said he was “concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation”. The following day in parliament, he told MPs the UK Government believed it would have a “serious adverse impact” on the Equality Act.

The government’s full statement of reasons – published later that day – said a lack of “significant safeguards” would erode confidence in the Equality Act as a credible framework to protect the operation of single-sex spaces, services, sports and occupational requirements. This, it warned, could have a “chilling effect” on organisations, disincentivising single-sex service provision and seeing people self-exclude.

In addition to this, it also said the bill could create “potentially unmanageable” consequences over the administration of taxes, benefits and pensions managed by integrated pan-UK systems.

More generally, it said existing issues with the current process for issuing gender recognition certificates (GRCs) would be exacerbated because the introduction of self-identification would “allow a new and significantly broader category of people to obtain a full GRC”.

What was the reaction?

The Scottish Government reacted furiously. Then first minister Nicola Sturgeon said it was “a  full-frontal attack on our democratically elected Scottish Parliament”. Before the Section 35 order was even confirmed, she said her government would “vigorously defend the legislation”, likely through a judicial review.

Protests took place in Glasgow, Edinburgh and outside Downing Street in the week after the decision was taken, some of which were attended by MSPs.

But others, including campaign group For Women Scotland, welcomed the move. The LGB Alliance said it was “grateful” Jack has listened to concerns.

SNP MP Joanna Cherry tweeted: “The problem is made in Scotland and should be fixed in Scotland.”

So now what?

The Scottish Government had a window of 90 days from the order being laid in Westminster to challenge it.

In between time, there’s been change at the top levels of government following the resignation of Nicola Sturgeon. The issue naturally came up during the SNP leadership election. While two of the candidates said they would not challenge the Section 35, Humza Yousaf confirmed he would do so. He said while there was a “range of views” on the bill itself, the move by the UK Government had made it “about the principal of our democracy”.

That gave a bit of a signal for what the Scottish Government will ultimately argue. On 12 April, it confirmed it will lodge a petition for judicial review. 

And what is the Scottish Government’s argument?

Social justice secretary Shirley-Anne Somerville said the UK Government did not provide “sufficient justification” to make the order. She said the power had not been used “in line with the memorandum of understanding between the UK and devolved governments… or as envisaged when the Scotland Act was passed”.

“It is important to have clarity on the interpretation and scope of the power, and its impact on devolution. Those matters and the use of the power on this occasion should be legally tested in the courts,” she added.

The case will go to the Court of Session and the job of the judges will be to listen to the Scottish and UK Government’s arguments and decide whose interpretation of the Scotland Act is correct.