Humza Yousaf’s government has confirmed it will launch court action to appeal UK ministers blocking the gender recognition reforms.

In an expected move, SNP Social Justice Secretary, Shirley-Anne Somerville, has confirmed the court action is being lodged by the Scottish Government “to uphold the democratic decision of the Parliament and ensure proper protection of devolution”.

The Scottish Tories accused Scottish ministers of "manufacturing grievance with the UK Government" by making the move.

The judicial review will initially take place in front of a judge in the Outer House at the Court of Session.

Whichever side loses the case can then appeal the decision to a panel of judges in the Inner House, before an appeal can be lodged to the UK Supreme Court.

Mr Yousaf was expected to follow Nicola Sturgeon in contesting the UK Government’s decision to lodge the first ever use of a section 35 order to stop Scotland’s gender recognition reforms from becoming law.

Read more: Humza Yousaf: decision on gender legal challenge 'very imminent'

Under the plans, overwhelmingly backed by MSPs, the requirement for trans people to have a gender dysphoria diagnosis would be removed with a move to a system of self-ID.

The age limit would also reduce from 18 to 16 years old and processes sped up.

Scottish Secretary Alister Jack said the move to block the legislation was needed because the Holyrood Bill clashed with existing UK-wide equality law.

In a response to a government-initiated Holyrood question, Ms Somerville labelled the section 25 order as “an unprecedented challenge to the Scottish Parliament’s ability to legislate on clearly devolved matters”.

She said: “The order was made without any specific prior engagement or notification by the Secretary of State during the Bill process.

The Herald: Shirley-Anne SomervilleShirley-Anne Somerville (Image: PA)

“It was made without any specific request for amendments to the Bill from any UK minister. Since the order was laid, and despite requests, the Secretary of State and the UK Government have refused to provide any further clarification or engagement with the Scottish Government or Scottish Parliament.

“We have offered to discuss specific changes to the Bill with the Secretary of State, but given that this offer has not been taken up, it is impossible to know what changes would satisfy the reasons the UK Government has given, particularly as he has highlighted that the existence of two different schemes within the UK is in itself problematic.”

Ms Somerville added: “To uphold the democratic decision of the Parliament, and ensure proper protection of devolution, Scottish ministers will now lodge a petition for judicial review of the Secretary of State’s decision.

Read more: Joanna Cherry tells Nicola Sturgeon to 'eat humble pie' over GRR

“The Scottish Government does not consider the reasons set out by him provide sufficient justification for his decision to make an order under section 35 of the Scotland Act.

“The Scottish Government also believes that the UK Government has not used the power in line with the Memorandum of Understanding between the UK and Devolved Governments (agreed in 1999 and updated in 2013), or as envisaged when the Scotland Act was passed.

“While the Scotland Act conferred the power in Section 35 on the Secretary of State, its use is unprecedented, so it is important to have clarity on the interpretation and scope of the power, and its impact on devolution. Those matters and the use of the power on this occasion should be legally tested in the courts.”

Yesterday, Mr Yousaf indicated he was committed to “challenge what I consider to be an undemocratic veto” of Holyrood legislation.

He has previously said he would launch a court challenge if he was given legal advice that raised the prospect of a move being successful.

The Herald: Scottish Secretary Alister JackScottish Secretary Alister Jack (Image: PA)

Mr Jack said the UK Government intends to “robustly defend” the GRR legal challenge.

He said: “The UK Government will robustly defend the decision to prevent the Scottish Government’s Gender Recognition Reform Bill from becoming law.

“I made the order under section 35 of the Scotland Act 1998 after thorough and careful consideration of all the relevant advice and the policy implications.

“I was very clear in the accompanying statement of reasons how the Bill would have an adverse effect on reserved matters, including on the operation of the law as it applies to Great Britain-wide equalities protections.

“The use of the power is entirely within the devolution settlement as set out from its inception, with cross-party support.” 




The Scottish Conservatives have criticised the judicial review.

Scottish Tory deputy leader, Meghan Gallacher, said: “This is a painfully transparent attempt by Humza Yousaf to divert attention from the civil war engulfing the SNP and the huge question marks over the party’s finances.

“Desperate times call for desperate measures, so the beleaguered First Minister has reached for the nationalists’ playbook, and is manufacturing grievance with the UK Government."

She claimed that Mr Yousaf "has chosen to ignore public opinion – not to mention the views of his two SNP leadership rivals – to pursue confrontation with Westminster and appease the extremist Greens in his administration".

Ms Gallacher added: “A strong leader, acting in the national interest, would revisit and amend a profoundly flawed Bill. It’s a measure of Humza Yousaf’s weakness that he has chosen the opposite course.

“The First Minister should be focused on the real priorities of the Scottish people rather than a costly, self-serving legal battle.”