A procedural hearing in the Scottish Government’s legal challenge against the UK Government’s use of a section 35 order over Holyrood gender reform legislation was held this morning with the full case to be heard next month.
It was confirmed at today's short hearing that the substantive legal battle will begin on September 19. It is due to last three days.
The Lord Advocate Dorothy Bain is representing the Scottish Government while the UK Government's case is being put by representatives of the Office of the Advocate General.
Lady Haldane, who ruled in 2022 that the definition of sex was “not limited to biological or birth sex”, will preside over the case.
Earlier this month the Scottish Government failed in a bid to postpone the September legal hearing.
Lawyers for Scotland’s ministers went to the Court of Session on August 4 to seek a later court date.
Advocate Paul Reid told judge Lady Haldane then that the postponement was needed because of an appeal brought to the Inner House of the Court of Session by For Women Scotland. Lady Haldane refused the Scottish Government’s request.
The judicial review was sought after Scottish secretary Alister Jack utilised never-before-used powers under Section 35 of the Scotland Act – the legislation which established the devolved Scottish Parliament – to prevent the Gender Recognition Reform (Scotland) Bill from gaining royal assent.
Scottish ministers are seeking to challenge the UK Government for the unprecedented use of the legal mechanism under the Scotland Act 1998.
The Bill aimed to make it easier for transgender people to legally change their gender. It proposed removing the need for a medical diagnosis of gender dysphoria and shortening the amount of time someone needs to live in their acquired gender before they are able to get a gender recognition certificate.
The Bill also proposed lowering the age someone can get one of these certificates from 18 to 16. It was passed by a majority of MSPs in Holyrood in December last year.
However, the Bill was then blocked by the UK Government, which said it impacted on legislation that was reserved to Westminster.
It was the first time the UK Government has issued a section 35 order.
According to the House of Commons Library: “If section 35 is exercised, an order (secondary legislation) is laid before the UK Parliament, which prohibits the presiding officer of the Scottish Parliament from submitting a bill to the King for royal assent.”
The main thrust of the issue here is the Gender Recognition Act 2004 is devolved to Holyrood, but the Equalities Act 2010 is reserved to Westminster – and the UK Government argues this Bill encroaches onto this reserved legislation.
Today's hearing was a preliminary hearing at the Court of Session in Edinburgh to make sure both sides are ready to go ahead with the full case.
The UK Government needs to show the Bill passed by MSPs in Holyrood modifies reserved matters and has an adverse effect on the operation of UK-wide reserved law.
On the other hand the Scottish Government needs to show Scottish secretary Alister Jack was unreasonable in a legal sense to issue this order, and that it overrides the operation of devolution.
Whichever side loses the case has the right to appeal this decision in the Court of Session.
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