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Article Scotland: Court Upholds UK Government Order to Block Gender Recognition Bill from Becoming Law

On December 8, 2023, the Court of Session in Scotland issued an opinion refusing a petition for judicial review of the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023 and upholding the order, which blocks the Gender Recognition Reform (Scotland) Bill by prohibiting it from being submitted to receive royal assent and becoming law.

The Gender Recognition Reform (Scotland) Bill was passed by the Scottish Parliament in December 2022 with the aim of simplifying the process in Scotland of obtaining gender recognition certificates provided for under the Gender Recognition Act 2004, which applies to the entire United Kingdom (England, Wales, Scotland, and Northern Ireland). This was the first time the government of the United Kingdom (U.K.) made an order using section 35 of the Scotland Act 1998 to prevent a Scottish Parliament bill from moving forward to receive royal assent. The U.K. government determined that the Scottish bill “would have an adverse impact on the operation of Great Britain-wide equalities legislation” by:

  • Creating two different regimes for issuing gender recognition certificates.
  • Removing third-party-verification safeguards that could lead to a significant increase in the filing and granting of fraudulent applications.
  • Impacting the operation of the Equality Act 2010.

The Scottish government petitioned the court for an order to reduce the order (declare it to be of no legal effect). For the order to be lawful and prohibit a Scottish parliamentary bill from being submitted for royal assent under section 35 of the Scotland Act 1998, the secretary of state for Scotland must have reasonable grounds to believe that the bill contains provisions that modify the law as it applies to reserved matters, which includes the U.K.’s international obligations, defense, or national security, or that the bill would have an adverse effect on the operation of the law as it applies to reserved matters. Thus, the matter before the court concerned whether the order was lawfully made rather than the substance of the bill. The court considered an argument from the lord advocate, whose roles include serving as a government minister and representing the Scottish government in civil proceedings, that a disagreement in policy was the reason behind the secretary of state making the order, but concluded that the evidence presented was not sufficient for the court to either infer or conclude this was the case.

The court determined that the criteria under section 35 of the Scotland Act 1998 were met because the bill modified the law as it applies to reserved matters by seeking to change the meaning of section 9 of the Gender Recognition Act 2004, redefining the terms “full gender recognition certificate.” The court found that the secretary of state used the appropriate procedure to invoke section 35 of the Scotland Act 1998 because the bill had the effect of modifying the law relating to reserved matters. It also determined that the secretary of state had taken all steps that were reasonable in the circumstances to understand the material in order to reach the decision that he did and that the reasons he provided for making the order were rational and adequate. On these grounds, the court determined the challenge to the order had failed.

Clare Feikert-Ahalt, Law Library of Congress
January 24, 2024

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Chicago citation style:

Feikert-Ahalt, Clare. Scotland: Court Upholds UK Government Order to Block Gender Recognition Bill from Becoming Law. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-01-23/scotland-court-upholds-uk-government-order-to-block-gender-recognition-bill-from-becoming-law/.

APA citation style:

Feikert-Ahalt, C. (2024) Scotland: Court Upholds UK Government Order to Block Gender Recognition Bill from Becoming Law. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-01-23/scotland-court-upholds-uk-government-order-to-block-gender-recognition-bill-from-becoming-law/.

MLA citation style:

Feikert-Ahalt, Clare. Scotland: Court Upholds UK Government Order to Block Gender Recognition Bill from Becoming Law. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-01-23/scotland-court-upholds-uk-government-order-to-block-gender-recognition-bill-from-becoming-law/>.