Humza Yousaf set for legal battle with UK Government over controversial gender self-ID bill
HUMZA Yousaf today launched a court challenge against the UK Government’s block on Holyrood’s controversial plan to bring in a gender self-ID system.
The new First Minister’s Social Justice Secretary, Shirley-Anne Somerville, confirmed a legal action which she said aimed to “uphold the democratic decision of the Parliament, and ensure proper protection of devolution”.
But the move comes despite polls signalling majority public opposition to the controversial gender self-ID system – as well as a court challenge.
The planned law would allow anyone aged 16 or over to change sex on their birth certificate in a six-month process, simply by signing a legal declaration.
In the rest of the UK, the current rules will still apply with a legal change only granted to over 18s with a medical diagnosis, after two-years living in a new gender.
The challenge – expected to go to the Court of Session in Edinburgh, and then potentially to the UK Supreme Court – was confirmed in a response to a backbench parliamentary question, due to Holyrood being in recess for Easter.
The response, in the name of Ms Somerville, said: “To uphold the democratic decision of the Parliament, and ensure proper protection of devolution, Scottish Ministers will now lodge a petition for judicial review of the Secretary of State’s decision.”
UK Government Scottish Secretary Alister Jack argues the Gender Recognition Reform (Scotland) Bill will interfere with Britain-wide equality laws.
And he blocked the legislation using what’s known as a Section 35 order, which can be made – under the law underpinning devolution – if a Bill would have a detrimental impact on policy areas reserved to Westminster.
Mr Jack says having two gender recognition systems in the UK risks “significant complications”.
The UK Government also raised concerns about the safety of women and girls due to the “significantly increased potential for fraudulent applications to be successful”.
In January, ex Supreme Court judge Lord Hope said SNP ministers’ chances of winning a legal challenge were “very low”, and said the UK Government’s statement of reasons for blocking the overhaul was “devastating”.
But Ms Somerville’s statement said today: “The Scottish Government does not consider the reasons set out by him provide sufficient justification for his decision to make an order under section 35 of the Scotland Act.
“The Scottish Government also believes that the UK Government has not used the power in line with the Memorandum of Understanding between the UK and Devolved Governments (agreed in 1999 and updated in 2013), or as envisaged when the Scotland Act was passed.”
Ms Somerville said the use of Section 35 of the Scotland Act “to stop the legislation proceeding to Royal Assent is an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters”.
She said: “The order was made without any specific prior engagement or notification by the Secretary of State during the Bill process. It was made without any specific request for amendments to the Bill from any UK Minister.
“Since the Order was laid, and despite requests, the Secretary of State and the UK Government have refused to provide any further clarification or engagement with the Scottish Government or Scottish Parliament.”
Ms Somerville claimed the Scottish Government had “offered to discuss specific changes to the Bill with the Secretary of State, but given that this offer has not been taken up, it is impossible to know what changes would satisfy the reasons the UK Government has given, particularly as he has highlighted that the existence of two different schemes within the UK is in itself problematic”.
Backers of the planned self-ID regime claim the move would be a major step forward for trans people, arguing it will reduce the torment of a marginalised group in changing gender.
But critics warn it could lead to predators abusing the self-ID system to access female-only spaces, and some object to biological males saying they are women.
The Bill passed in December by 86 votes to 39, after years of parly feuds over the issue – and despite polling suggesting most Scots object.
Amid an SNP backbench rebellion, MSP Ash Regan – who later stood for the party leadership – quit as Community Safety Minister over the issue.
Fellow leadership candidate Kate Forbes – on maternity leave when the vote happened – has also said she wouldn’t have backed the plan.
A YouGov poll in December found 60 per cent are opposed to the central plank of the plans – to remove the need for a diagnosis of gender dysphoria before allowing people to change the sex on their birth certificate. It showed just 20 per cent of voters were In favour of the controversial change, with 20 per cent unsure.
A poll ending on March 10 by Survation found 55 per cent of Scots adults said the new First Minister should not mount a legal challenge against the UK Government via a judicial review. Just 26 per cent backed a challenge and 19 per cent said they dodn’t know.
A separate poll by Savanta ending on March 31 found just 16 per cent said Mr Yousaf should challenge the veto “no matter what”.
A further 17 per cent said he should challenge it unless he was advised his challenge is very unlikely to be successful.
And 45 per cent said he should not challenge it, full stop, with a further 21 per cent unsure.
Earlier this year, retired Scottish judge Lord Hope said if the Scottish Government mounted a legal challenge it would be “risking a lot of time, as it will take a long time to get to the Supreme Court”. He also questioned if it was “a sensible use of public money”.
The judge said: “It is open to question whether it is a wise decision from the prospects of success, which I would think were very low given the detail in the document that has been published”.
He said concerns included the operation of rules for equal pay.
And he said Scottish 16 and 17-year-olds who change their gender would potentially be able to access single-sex schools in England “with a certificate that doesn’t have the safeguards which apply under the English system”.
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