“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.”

With this announcement on Wednesday afternoon, the Scottish Government simultaneously took its constitutional dispute with the UK Government, and its policy agenda relating to gender recognition, to a new level.

This is news, for sure, but it is not a surprise. Whilst the SNP leadership contest focussed on this issue a little less than many observers predicted it would, it nonetheless crystallised on several occasions that Humza Yousaf was the candidate who would both take London to court, and push forward with the Bill as passed, unamended.

There is bravery and risk in this for Mr Yousaf, now First Minister. Only 22 per cent of the Scottish population, according to polling earlier this year by Lord Ashcroft, both support the Bill and oppose the UK Government’s blocking of it using Section 35 of the Scotland Act. This is Mr Yousaf’s position.

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The poll revealed that the three most important issues to all Scots were the NHS, cost of living, and the economy; even SNP supporters agreed with the first two, with winning independence coming in as number three. Only three per cent of Scots cited gender recognition as an issue among the most important to them.

It is part of a government’s job, of course, to do unpopular things and resist being beholden to opinion polls, but the starkness of the numbers do highlight the fact that the government has its back against the wall. Nonetheless, it is possible for Mr Yousaf to emerge from this well, and indeed to strengthen his position.

To do this, he will need to separate the policy matter of gender recognition from the constitutional matter of challenging a perceived encroachment onto Scottish turf.

On the former – the policy – Mr Yousaf and those around him will be well aware of middle-ground public opinion. Another poll, this time by YouGov and during the passage of the Bill, recorded three-in-five people disagreeing with the proposal to remove the need for a gender dysphoria diagnosis, with the same proportion opposed to lowering the minimum amount of time a person should live in their acquired gender. Two-thirds opposed lowering the age limit to 16.

Widespread concerns over the safety of women and girls, particularly in protected spaces such as changing rooms, were largely dismissed by the previous administration, but Mr Yousaf’s closest aides, I suspect, understand that these concerns are not transphobic and are at least worthy of acknowledgement.

The Herald: Humza YousafHumza Yousaf (Image: free)

Another truth which will be well understood by Mr Yousaf’s team is that the Bill itself sits in front of a larger, longer-standing policy problem, which is the application of ‘best practice’. This has already exploded into the public consciousness with the matter of whether double-rapist Isla Bryson/Adam Graham should be in the women’s prison estate.

Moreover, as many parents around the country will know, there are inconsistent and often questionable applications of gender recognition best practice throughout our schools, including at primary schools, and particularly when it comes to girls expressing a wish to be identified as a boy. In attempting to strike a balance between acceptance and protection, headteachers across the country are allowing young children to self-identify.

There are myriad ethical and medical concerns about this. Should parents be consulted? Is the self-identification a mask for problems at home or at school? Is it in reality confusion over sexuality rather than gender? Does it have roots in mental ill health?

These life-altering decisions are being made all over Scotland, with and by children far, far younger than 16. Children whose prefrontal cortex, the part of the brain which permits us to make rational decisions, is many, many years away from development.

I have four pre-teen girls and, like most parents, I would trust them to change their favourite colour, but I would not trust them to change their gender.

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Showing willingness to revisit the whole policy platform, including the Bill and the legacy best practice, would send a signal to those middle-ground people, many SNP voters amongst them, that this government has its ears open. That would help Mr Yousaf immeasurably.

Additionally, it would send a signal to his allies in government, the Greens, that the SNP is the senior partner in this arrangement. On very many occasions, and in very many policy areas, the Greens have appeared to shout “jump”, with the SNP replying “how high”. If Mr Yousaf put away the carrot and pulled out the stick, he could start to restore a proportional power balance in that relationship, and partially placate those restless MSPs and members in his own party (one-in-three according to a recent poll) who want to pull the plug on the whole deal.

That is the policy perspective; what about the constitutional one? Putting the gender recognition issue to one side, there is merit in challenging the use of the Section 35. Firstly, there is political merit – nationalists, and more than a few unemotional unionists, are deeply uneasy at the prospect of Westminster liberally blocking legislation passed at Holyrood, and are deeply sceptical about the motives behind this particular block. They expect this to be fought, and Mr Yousaf may have faced their wrath had he not done so.

Secondly, there is constitutional merit. Current and future Scottish and UK governments would be served well by better understanding what their boundaries are. Toxic as this particular issue is, the practice of using a Section 35, and the practice of taking it to a judicial review, needs to be tested. In the final analysis, when heads are cooler, it may be seen as being beneficial to devolution and its institutions that the exercise was carried out.

Expectations of the outcome of the gender recognition row, and by extension of Mr Yousaf’s role in it, are low. Low expectations can be useful; it is easier to exceed them. With pragmatic navigation, Mr Yousaf could achieve just that.

Andy Maciver is Founding Director of Message Matters and Zero Matters