Court Rules Westminster Acted Lawfully When Blocking Scottish Self-ID Law

Conservatives issued a ‘never-before-used’ Section 35 because of the ‘adverse effects’ the Gender Recognition Reform Bill would have had on UK-wide laws.

First Minister of Scotland Humza Yousaf speaks to the media after First Minster's Questions at the Scottish Parliament in Holyrood, Edinburgh, on June 15, 2023. Jane Barlow/PA Media

Scotland’s highest civil court has ruled that the UK Government’s blocking of a law, which would have enabled anyone over the age of 16 to self-identify their gender, was lawful.

The Gender Recognition Reform (Scotland) Bill, would have allowed anyone over the age of sixteen to self-ID via a statutory declaration to obtain a new birth certificate, which changes the recording of their registered sex at birth to their chosen gender.

But the UK government blocked the bill in January, citing its “adverse impact” on UK-wide equalities protection, earlier this year.

The Scottish Government then mounted a legal challenge after Westminster issued an unprecedented Section 35 order of the Scotland Act to prevent the bill from receiving royal assent.

Dismiss the Petition

In her ruling published on Friday, Lady Haldane, who presided over two days of evidence at Edinburgh’s Court of Session in September, said: “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 key argument put forward by David Johnston, KC, acting on behalf of UK ministers, was that the policy could have an “adverse impact” on reserved equality legislation.

Scottish Secretary Alister Jack said he welcomed the court’s judgment, “which upholds my decision to prevent the Scottish Government’s gender recognition legislation from becoming law.”

“I was clear that this legislation would have had adverse effects on the operation of the law as it applies to reserved matters, including on important Great Britain-wide equality protections,” he said.

“Following this latest court defeat for the Scottish Government, their ministers need to stop wasting taxpayers’ money pursuing needless legal action and focus on the real issues which matter to people in Scotland–such as growing the economy and cutting waiting lists,” he added.

‘Dark Day for Devolution’

Scottish First Minister and SNP leader Humza Yousaf wrote on X: “Today’s judgment confirms beyond doubt that devolution is fundamentally flawed. The Court has confirmed that legislation passed by a majority in Holyrood can be struck down by Westminster.

“The only way to guarantee we get true self-government is through independence.”

He continued: “This is a dark day for devolution.

“Sovereignty should lie with the people of Scotland, not a Westminster Government we didn’t vote for with the ability to overrule our laws.

“We, of course, respect the court’s judgment and will take time to consider its findings.”

Critics of the legislation had said that that a self-identification system could be exploited, or that male prisoners may abuse the system.

The proposals have encountered recent criticism from the UK government and the Equality and Human Rights Commission (EHRC), which in October called for more consultation with all those affected by proposed changes.

Women’s groups as well as the U.N. Special Rapporteur on violence against women and girls, Reem Alsalem, have raised grave concerns that it would have opened up women’s services and private spaces to abuse.

Adam Graham/Isla Bryson

Last December, self-ID supporter Maggie Chapman of the Scottish Greens said that “sex is not, as some would like to imagine, binary and immutable.”

Responding to the news, Ms. Chapman said, “This is a devastating day for equality. It is a democratic outrage, crushing basic rights and equality for some of Scotland’s most marginalised people.”

Scottish Conservatives deputy leader Meghan Gallacher MSP said, “This is a humiliating defeat for Humza Yousaf and the SNP, who have once again squandered taxpayers’ cash on a self-serving but doomed court case.”

Ms. Gallacher noted the case of Adam Graham, 31, who now uses the name Isla Bryson, who was was found guilty of raping two women in Scotland, was housed in the female estate while awaiting sentence for his crimes.

“Their reckless Gender Recognition Reform Bill is deeply unpopular with the Scottish public because its self-ID principle compromises the safety of women and girls–as the case of a double-rapist being sent to a female prison demonstrated,” she said.

PA Media contributed to this report.