Scottish Secretary ‘did not act irrationally’ when blocking Sturgeon’s gender law

The Scottish Secretary “did not act irrationally” when he vetoed Nicola Sturgeon’s self-ID gender law, legal submissions from the UK Government have said ahead of a court showdown with SNP ministers next month.

Lord Stewart of Dirleton, the Advocate General for Scotland, said that Alister Jack had acted on the basis of the evidence before him that the reforms would undermine UK-wide protections for women.

This included concerns that the SNP’s Gender Recognition Reform Bill would increase the number of “fraudulent” applications from people who wanted to take advantage of the “more limited ‘safeguards’” in the legislation, he said.

Lord Stewart added that Mr Jack had not taken into account “irrelevant considerations” in his decision and there were “reasonable grounds” for him to conclude that the legislation would impact on equalities laws that are reserved to Westminster.

Rejecting the SNP’s claims that the veto had ridden roughshod over the Scottish Parliament, he said it was “part of a suite of carefully crafted checks and balances” in the Scotland Act that created devolution.

The Bill would allow Scots to change their legal gender by simply signing a statutory declaration, dropping the requirement for a formal medical diagnosis of gender dysphoria.

It would also drastically lower the time period in which someone must live in their “acquired gender” from two years to as little as six months, and allow 16 and 17-year-olds to obtain gender recognition certificates for the first time.

There was a huge public backlash against the reforms after Isla Bryson, the trans double rapist, was initially sent to a female prison in February before being moved to a male jail.

Although Bryson had not legally changed gender, guidance by Scottish Prison Service at the time said that trans criminals should be sent to the jail that matched the self-identified gender they were living in prior to their conviction.

Mr Jack vetoed the Bill by tabling an order under Section 35 of the Scotland Act. Humza Yousaf, Ms Sturgeon’s successor as First Minister, has pressed ahead with a petition for judicial review of the decision despite legal experts warning he had little chance of success.

The Court of Session is scheduled to hold a three-day hearing starting on Sep 19 before Lady Haldane.

Lord Hope of Craighead, a former deputy president of the UK Supreme Court, warned earlier this year that the Scottish Government had a “very low” chance of success of winning a judicial review action and questioned whether her planned legal action was a “sensible use of public money”.

In his submission, Lord Stewart said that for SNP ministers to succeed, they would have to prove that the Scottish Secretary had acted in a manner which was “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.

Lord Stewart said that SNP ministers had misinterpreted Mr Jack’s concerns as being a mere “policy disagreement”. 

“It is not the fact of divergence itself which is considered by the Secretary of State to be adverse, but rather the effect that particular examples of divergence would have on the operation of the law as it applies,” he said.

Safeguarding concerns raised

In a “note of argument” published on the Scotland Office’s website outlining his case, he said: “The Secretary of State’s belief that he had sufficient information to make the Order was one that was open to him.

“It follows as a matter of logic from their terms that the amendments in the Bill would reduce the safeguards in the 2004 Act against fraudulent or malign applications.”

He said that concern about “the adequacy of safeguards in the Bill had been expressed during the passage of the Bill through the Scottish Parliament, including by the UN Special Rapporteur”.

Charities such as Stonewall, Gendered Intelligence and the Institute for Constitutional and Democratic Research will be able to present written evidence to the court on the adverse consequences of Westminster’s decision.

The Scottish Government declined to comment on Lord Stewart’s case.