The Scottish Greens have issued a warning to John Swinney over gender reform legislation after the new First Minister refused to say if it would seek to implement the stalled bill should Labour come to power at Westminster.

Mr Swinney told Sky News that his government “quite simply can’t proceed with it" and in a separate interview last night would not commit to asking Sir Keir Starmer to lift a legal block on the legislation if he ousts Conservative Prime Minister Rishi Sunak at the general election expected later this year

The new First Minister said any change of UK government was hypothetical and the Supreme Court (in fact it was the Court of Session) had ruled that Holyrood could not legislate over gender recognition reform whereby trans people are able to self identify.

"I cannot ignore the fact the Supreme Court said we cannot proceed with that legislation. I accept the rule of law. It's the reality in our society," Mr Swinney told the BBC's The Nine. 

The Herald: The new First Minister John Swinney with Deputy First Minister Kate Forbes and the Scottish Cabinet pictured outside Bute House, Edinburgh, on Wednesday this week.  Photo. PA.

However, he was reminded of the Scottish Government's position following the court ruling that should there be a change of government at Westminster discussion could be opened up about removing the legal block.

Asked if there was a new Prime Minister after the general election, if that was a conversation he would seek to have, Mr Swinney said: "I think there is multiple what ifs before we get to that situation."

Speaking exclusively to The Herald Maggie Chapman, pictured below, the Greens's spokesperson on equalities, made clear her party's disappointment with the First Minister's comments.

The Herald:

"John Swinney last night was asked repeatedly if the context of Westminster politics changed and there was the possibility of an opening of a conversation to lift the Section 35 veto on the Gender Recognition Reform Bill would he explore those conversations.

"And he didn't say yes. That bill was voted on by a majority of the Scottish Parliament and it remains the will of the Scottish Parliament," she said.

"Trans people, members of the LGBT community and their allies, we need a clear statement that he is still committed to that legislation and to exploring opportunities to enact it."

She added that the ruling of the court was that the Secretary of State was within his rights to use a Section 35 order to block the GRR bill as believed it would interfere with UK equalities law, but that the court had not ruled on whether the bill did actually interfere with reserved legislation.

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"The ruling of the court was that the Secretary of State was within his rights to say there was an interference but there was no determination on the nature of that interference or the extent of it. It was just that the Secretary of State had the right to do so," she said.

"It was the Section 35 order of the Scotland Act that was tested - this is drafted pretty broadly to say the Secretary of State can block Scottish legislation if they are of the view that it [interferes in Westminster laws] but the ruling did not say whether it does."

She said gender recognition reform was "a political commitment across Holyrood "for more than the last two and a half years" and her party would want to see that the GRR Bill enacted.
"That law matters. It's important," she added.

The Herald asked if progress on the GRR Bill and a ban on conversion therapy practices could be red lines for the Greens in terms of whether they would back the Scottish Government's budget or any no confidence motion in ministers

"We have not as a group talked about red lines, but what we have talked about is working on a case by case basis," she said.

"These issues [GRRB and a ban on conversion practices] remain our very clear party policies and yes we will use our influence as a party of opposition to promote these issues and others we want to see changed or strengthened. We still want to see the policy programme of the Bute House Agreement delivered."

She was pressed if the Greens would not back the Scottish Government Budget if the SNP did not back a watertight ban on conversion therapy or progressed the Gender Recognition Reform Bill.

"We're not in the position to say that. I want to see those two policies progressed. But I understand some of the political sensitivities and tactics around that. Going in all guns blazing might be completely the wrong thing to do or it might be the right thing to do," she said.

"They require some tactical consideration I think. On Budget votes I think the Scottish Government is going to have to work pretty hard to secure our support for any Budget. 

"We are a party of opposition. We are a party which is very clearly of the left, we are a party which is very clearly standing up for the rights of all marginalised people including the LGBTQIA+ community.

"We want to see transformations in how our economy works for climate, in how our economy works for tenants. We want to see transformation in the way our economy and our democracy works for communities. All of these issues, I know we will be discussing with the government over the coming weeks and months.

"Other than that very clear commitment to addressing child poverty - which we whole heartedly support - we have little indication about the policy prospectus or direction of the government under John Swinney. He has only been in the job a couple of days." 

She added: "We are concerned but we are also prepared to give him some time to lay out his policy prospectus."

While Mr Swinney would not say last night if he would ask a Labour Government to lift the section 35 order, a Scottish Government spokesman said if the order was lifted the GRR Bill would become law.

Responding to Ms Chapman's interview with The Herald, a Scottish Government spokesperson said: “The GRR Bill was passed by the Scottish Parliament. If the UK Government lifted its legal block – the section 35 order - it would become law.

 “The problem is that the current UK government has said they will not. The Scottish Government’s position is simple - UK Government should lift their section 35 order.

 “They have made clear however that they will not, and until they do, it is simply not legal to implement the legislation.”

After FMQs on Thursday, Ms Forbes said: "The First Minister has been absolutely clear that the Scottish Government intends to promote, to protect and to enhance the rights of every LGBT person in Scotland and I wholeheartedly endorse that position.


"When I joined Cabinet, as everybody does, I agreed to abide by collective responsibility. That is what I intend to do and I stand full square behind the First Minister as he seeks to serve everybody, including those in the LGBT community.”

Responding to the Scottish Government spokesperson comments, Scottish Conservative deputy leader Meghan Gallacher said: “Women’s groups, and the vast majority of Scots, will be dismayed to hear that John Swinney is doubling down on Nicola Sturgeon’s reckless gender self-ID policy.

“This is further proof that John Swinney spells more of the same, and is wedded to the same failed and flawed approach as Nicola Sturgeon and Humza Yousaf.

“If he really represented change, John Swinney would apologise for and disown a policy which puts the safety of women and girls at risk – and which was only blocked thanks to the intervention of the Scottish Secretary.”