Is the UK government gearing up for a court battle with the Scottish parliament over gender self-ID? This afternoon, Holyrood passed the gender recognition bill by 86 votes to 39. This makes Scotland the first part of the UK to give the green light to a process of self-identification for legally changing gender. The controversial legislation has so far seen one Scottish government minister resign and more SNP politicians speak out to voice concern. When the outcome of the vote was read out, it was met with a mix of cheers and jeers from the public gallery, with opponents of the bills shouting ‘shame on you’.
What’s more, the bill could still be open to challenge. It’s no great secret that ministers in Rishi Sunak’s government harbour concerns over the legislation. Just this week, equalities minister Kemi Badenoch met her SNP counterpart Shona Robison to urge her government to carefully think about the gender reform plans. Now things could be stepping up a gear. Following the decision of the Scottish Parliament, Secretary of State for Scotland Alister Jack issued a statement raising concern as well as the possibility that he could invoke powers to block the bill from going for Royal Assent:
We share the concerns that many people have regarding certain aspects of this bill, and in particular the safety issues for women and children. We will look closely at that, and also the ramifications for the 2010 Equality Act and other UK wide legislation, in the coming weeks – up to and including a Section 35 order stopping the bill going for Royal Assent if necessary.
So, what does this really mean? It’s worth noting that this is the beginning of a routine process that takes place at the end of a bill passing through the Scottish parliament whereby there is a 28-day period to consider the implication of the bill on reserved matters. This is standard procedure and could result in something simple such as a Section 104 provision which can tidy up cross border issues. Right now, nothing has been decided. However, the fact Jack has even mentioned a Section 35 order points to the fact there is a chance the government takes drastic action.
A Section 35 order is the mechanism by which the Secretary of State can stop a bill if it adversely affects reserve legislation – for example, if it was decided that it adversely effects the operation of reserve matters such as the Equality Act, Jack could step in and pause the bill. In such a scenario, the Scottish government could try to take the UK to court; the matter would then be decided in court. We are currently some way from reaching that point – and it’s worth noting it would be a drastic measure – but the early indications suggest the UK government could try to block the bill from becoming law.
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