SNP ministers fail in attempt to delay judicial review of gender reforms

Humza Yousaf’s government has launched a court challenge to Scottish Minister Alister Jack’s decision to issue a Section 35 Order to prevent gender recognition reforms from becoming law.

The Scottish Government’s judicial review is due to take place at the Court of Session in Edinburgh next month.

However, lawyers acting on behalf of the Scottish Government have called for the hearing to be postponed pending an appeal in a separate court over the definition of a woman.

But Lady Haldane rejected the Scottish Government’s request, agreeing with the UK Government’s legal department that “great efforts” had been made to set the timetable and that the request had come “too late”.

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At Friday’s Court of Session hearing, Paul Reid, on behalf of the Scottish Government, told Lady Haldane that a delay was necessary due to an objection by campaign group For Women Scotland, which opposes gender recognition reforms.

For Women Scotland’s appeal is due to take place in the Inner House of the Court of Session in October.

The appeal relates to the definition of a woman in the Gender Representation in Public Bodies Act. Mr Reid claims the appeal could have implications for the Scottish Government’s judicial review.

Mr Reid said: The Lord Advocate’s position is that the current hearing should be closed and a new date set.

“Failing to do so would pose a significant risk of complications in the event of the outcome of the case inside the House of Representatives.”

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But David Johnson KC, acting on behalf of the UK government, argued that the cases were separate judicial decisions and called for the delay to be rejected.

He said: “A great effort was made to set dates that suited the parties. This request comes too late.

“My motion is that you deny this motion.”

Lady Haldane supported the British Government’s reasoning and denied the request for the judicial review to be delayed.

She said: “I do not accept that the issues in the For Women Scotland case and the issues in this application submitted by the petitioners are the same.

“In the event that For Women Scotland is successful in the Inner House, further submissions on the case may be made as they deem appropriate.”

Under the reforms, which MSPs in Holyrood overwhelmingly approved, the need for a gender dysphoria diagnosis would be removed from the process of obtaining a gender recognition certificate – a document required for some administrative reasons.

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As part of the transition to a system of self-identification, the age limit would also be lowered from 18 to 16 years.

In January, Mr Jack said the move to invoke a Section 35 order was necessary because Scottish legislation – which would speed up and simplify the process for trans people to obtain a gender recognition certificate – had “adverse effects” on operations of equality legislation in the UK.

So he insisted that blocking the bill was the “necessary and right course of action”.

The UK government had urged Scottish ministers to come up with legislative changes, with Mr Jack saying it could represent a “constructive way forward” in the recent standoff between the two governments.

But Deputy First Minister Shona Robison, who was responsible for Holyrood passing the law, said UK ministers had not asked for any changes when the bill was considered by MSPs and warned that the UK government could not issue an order under Section 35 have not lawfully applied.

A UK Government spokesman said: “The UK Government stands ready to defend our position vigorously at the September hearing, so we welcome today’s decision by the court.”

“The Secretary of State for Scotland issued a Section 35 Order to prevent the Scottish Government’s Gender Recognition Reform Bill (Scotland) from coming into force as it would adversely affect reserved matters, including the application of the Act to the extent it is applicable to Great.’ UK-wide equality protection.’

A Scottish Government spokesman said: “It would not be appropriate to comment on ongoing legal proceedings.”