Scottish and UK Government lawyers will on Tuesday begin a three-day hearing at the Court of Session before Lady Haldane about the frozen Gender Recognition Reform Bill (GRR).
MSPs passed the Bill, which is intended to make it simpler and easier for people to change their legal sex, in December but Scottish Secretary Alister Jack vetoed it in January.
Here's what you need to know about what is happening this week.
What is happening this week?
The Scottish Government is going to Scotland’s highest court, the Court of Session, in an attempt to overturn a block on a Holyrood Bill imposed by Scottish Secretary Alister Jack.
What is the Bill involved?
Last December, MSPs passed the Gender Reform Recognition (Scotland) Bill by 86 votes to 39, one of the most contentious pieces of legislation ever to go before the parliament.
The Bill’s aim is to simplify and speed up the process of obtaining a gender recognition certificate (GRC), thereby changing one’s sex in the eyes of the law.
The process is currently governed by the UK-wide Gender Recognition Act 2004, which sets a minimum age of 18, requires a person to have lived in their acquired gender for two years, and also requires a medical diagnosis of gender dysphoria.
The Holyrood Bill would reduce the minimum age to 16, cut the two-year wait to six months, and remove the need for a medical diagnosis, using self-declaration (self-ID) instead.
Scottish GRCs would be available to people born in Scotland or ordinarily resident here.
Crucially, they would only have effect within Scotland, and not in other parts of the UK unless specific provision was made for them.
As the UK Government has no plans to change the 2004 system, there is no immediate prospect of them having effect in England.
It means someone with only a Scottish GRC could therefore be one legal sex north of the border, and a different legal sex south of it.
Why is there now a court case?
Shortly after MSPs passed the Bill, the Scottish Secretary effectively vetoed it by making an order under Section 35 of the Scotland Act 1998, the first time this had been done.
Although Westminster has previously challenged Bills it considered exceeded Holyrood’s powers, this was not the case with the GRR Bill, which it agreed was within competence.
Mr Jack said the Bill would nevertheless have adverse knock-on effects on areas of the law reserved to Westminster, and so an unprecedented Section 35 order was required.
The order prevented Holyrood’s Presiding Officer from sending the Bill for Royal Assent and thus becoming law.
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The issue featured prominently in the SNP leadership contest, with Humza Yousaf saying he would challenge the order, unlike his opponents, who had reservations about the GRR Bill.
In April, the Scottish Government confirmed it was to seek a judicial review in a bid to have the Section 35 order set aside, or “reduced”.
What does the Order actually say?
Under the Scotland Act, the Section 35 order must meet three conditions.
The legislation targeted must modify the law as it applies to reserved matters; the Secretary of State must have “reasonable grounds” to believe it would have an “adverse effect” on the operation of the law as it applies to reserved matters; and there must be reasons provided.
The order says the GRR Bill would modify the Gender Recognition Act 2004 as it applies to “fiscal, economic and monetary policy”, “social security schemes” and “equal opportunities”.
It says there would be three categories of adverse effect: the creation of “two parallel and very different regimes” for issuing and interpreting GRCs in the UK; removing safeguards could give rise to more fraudulent applications for GRCs and affect the safety of women and girls; and impacts on the legally protected characteristic of sex under equality law.
It says the dual system, with people potentially having different legal sexes in different parts of the UK, could lead to administrative problems with taxes, benefits and pensions managed by UK-wide IT systems, with a lack of clarity for employers and GRC holders themselves.
What do the two Governments say?
The Scottish Government argues this is essentially a policy disagreement dressed up as a legal issue, with the Scottish Secretary confecting hypothetical concerns to justify his veto.
It argues that none of the three conditions for a valid Section 35 order has been met.
It says the Scottish Secretary’s decision was premised on a “material error of law”, as reserved law was not modified; that it was not reasonable but irrational and involved irrelevant considerations; and that the reasons he produced were inadequate.
The Scottish Secretary says he met all the conditions; that the modifications are indirect rather than direct; that operation of the law encompasses “practical administration”; that all three of categories of adverse effect would have to be irrational to negate the Order; and that he did have reasonable, evidenced reasons for making the decision he did.
It says his decision necessarily relied upon his judgment and “logic”, as the likely adverse effects were “evaluative and not susceptible to objective assessment”.
Moreover, even if the Order is unlawful, the court should let it stand as the Scottish Government “have not genuinely suffered substantial prejudice as a result of the inadequacy”, an argument the Scottish Government dismisses as “untenable”.
What is due to happen in court?
The judicial review hewring is due to last three days.
The Scottish Government will be represented by its most senior law officer, the Lord Advocate Dorothy Bain KC, as well as Douglas Ross KC and advocate Paul Reid.
The Secretary of State for Scotland will be represented by David Johnston KC, Christopher Pirie KC and advocate Megan Dewart.
The case is due to start in Court 1 at 10am on Tuesday before judge Lady Haldane and will be livestreamed on the Scottish Courts website.
The Scottish Government team is due to speak on Tuesday and finish their submissions by 1230 on Wednesday.
The remainder of Tuesday and Wednesday has been allocated to the Scottish Secretary’s team.
There are also four interveners who can make written submissions: Scottish Trans, Stonewall, Gendered Intelligence and the Institute for Constitutional and Democratic Research.
The Scottish Government’s petition also lists Holyrood’s presiding officer, the Counsel General for Wales and the Attorney General for Ireland as interested parties.
What happens after that?
Lady Haldane is expected to take several weeks to deliver her opinion. It will then be open to the losing side to appeal to a panel of three or more judges in the Inner House of the Court of Session. A judgment made there can then be appealed to the UK Supreme Court.
If the Scottish Government ultimately succeeds in having the veto set aside, the Bill can become law. If not, the Bill returns to Holyrood for “reconsideration” and amendment, if the Scottish Government believes this is possible.
Read More: Yousaf: Gender reform court case 'not actually about the legislation'
How important is it?
That depends on who you listen to. Humza Yousaf and his ministers say there is a great issue of principle or stake as well as practical consequences for the stability of devolution.
If Westminster can veto one Holyrood Bill using a Section 35 order because of a “policy disagreement”, it will inevitably try to veto others, they warn.
The UK Government says it is acting out of concern for reserved law, but Mr Jack is obviously alert to the political dimension. The Tories at Holyrood largely opposed the GRR and stymying it will go down well with Tory voters.
Regardless, this is the first time a Section 35 order has been used, and the case will be important in helping to clarify how the power is interpreted and the threshold for any future use.
What are the politics of the case?
Mr Yousaf should be careful what he wishes for. Polls suggest most of the public oppose the GRR Bill and many of the SNP’s own politicians would rather it went away. If the Scottish Government succeeds in bringing it out of suspended animation, the First Minister may suffer some flak as a result. If he loses, he may escape that fate, but be criticised for spending large amounts of public money on the effort. However, having made it a point of principle, and with his Green partners in the Scottish Government demanding a challenge, he had little choice. If the UK Government prevails, Alister Jack will crow. If they lose, he is standing down as an MP at the next election and so will probably shrug it off on his way to the House of Lords. The risks and downsides fall mostly on the First Minister.
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