Gender Reform court defeat: Yousaf undecided on appeal

Ministers now have until 29 December to push ahead with any further legal action.

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Speaking to the PA on Monday morning during a visit to Dunbar, Mr Yousaf said: “We will consider legal advice, we’ll consider, of course, other factors with urgency and with pace.

“There’s a very narrow window, as you know, to make a decision on any appeal.

“We’ve not come to a decision yet because we have to consider, as I say, important issues like the legal advice.

“And as soon as we have an update to give Parliament, we’ll make sure they’re informed in due course.”

The First Minister faces pressure from the Scottish Greens, who want him to push ahead with an appeal.

However, his own party has been far more subdued.

One SNP MSP told The Herald it would be “utter madness” to continue the legal fight.

If there is an appeal, the case would go next to the Inner House of the Court of Session and then potentially to the UK Supreme Court, adding substantially to costs.

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MSPs passed the Gender Recognition Reform Bill (GRR) in December last year by 86 votes to 39 on a cross-party basis.

The legislation was supposed to speed up and simplify the process for a trans person to obtain a gender recognition certificate and change their legal sex.

Under the current system, this takes at least two years, involves a medical diagnosis and is only available at 18.

Holyrood’s Bill would have cut the waiting time to six months, scrapped the need for medical diagnosis and lowered the age threshold to 16.

However, before it could become law, Mr Jack blocked it by using the first-ever order under Section 35 of the 1998 Scotland Act.

He argued that although the subject matter was within Holyrood’s powers, the Bill would have an adverse effect on the operation of UK-wide equality law.

Running for the SNP leadership in the spring, Mr Yousaf said he would challenge the veto as a matter of principle if he won and later launched a judicial review.

His top law officer, the Lord Advocate Dorothy Bain KC, argued at the Court of Session in September that Mr Jack’s decision had been unlawful, irrational and motivated by a “policy disagreement” with Edinburgh rather than legal concerns.

Lady Haldane comprehensively rejected the Scottish Government’s arguments and said there was nothing to lead her to conclude that Mr Jack had acted unreasonably or unlawfully.

She also said Section 35 was an “intrinsic part” of devolution, not a perversion of it.

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Speaking to the Scottish Affairs Committee on Monday afternoon, Mr Jack welcomed the judgement.

He also confirmed reports that he was "minded to seek cost from the Scottish Government" for the UK Government's legal costs.

"My understanding, and I don't have the precise figures, is that the Scottish government has spent £230,000. We have spent circa £150,000 on our legal advice.

"If this was to go to the Inner Court of Session, you could easily double that up. And if it was to then go to the Supreme Court, you could double that again. So it's a sort of exponential increase.

"You could easily end up at the thick end of £2 million." 

He defended his use of the Section 35 order, telling the committee that it was the first in the history of devolution where UK Government law officers had judged Scottish Parliament legislation would have "adverse" effects on reserved legislation.

"Obviously, as a result, I didn't hesitate to use it," he said.

Asked if he thought there would be possible more used of Section 35, he replied, "No."

He added: "I think if the Scottish Government, make good legislation, listen to the advice of their law officers, don't go outwith competence or don't create adverse effects within the United Kingdom, I see no reason for us to go to court again."

Alba Party Holyrood leader Ash Regan has tabled a motion at Holyrood calling for the legislation to be scrapped.

“Hundreds of thousands of pounds have already been wasted and it would be unimaginable for the Scottish Government to appeal this decision and then ultimately proceed to a situation of potentially asking the UK Supreme Court to overturn a decision of Scotland’s highest court,” she said.

“I resigned from the Government as I simply could not support legislation that is so ill thought out, opposed by women’s groups across Scotland and a fundamental risk to the safety of women and girls.

“The Scottish Government lost the battle in court and they will further lose the support of the people of Scotland if they keep pursuing this policy.

“I urge Humza Yousaf to now completely scrap his Government’s gender reforms.”

Scottish Tory deputy leader Meghan Gallacher has written to the First Minister, urging him to abandon the Bill, claiming it would put “women and girls at risk”, and a further challenge would not be a good use of public money.

“I would urge you and your Government not to appeal the ruling issued on Friday and ignore your Scottish Green colleagues who have urged you to continue spending taxpayer money on this flawed Bill.

“The Scottish Government has spent too much time and too many resources on this legal challenge.

“The public would rather that their Government focus on more pressing issues such as cutting down NHS waiting lists, improving education standards and addressing the housing emergency.”