The Scottish Government has launched a legal challenge to the Tory administration’s veto of gender reform legislation passed by Holyrood.
Social Justice Cabinet Secretary Shirley-Anne Somerville confirmed the high-stakes move after Humza Yousaf made a court battle a key plank of his SNP leadership campaign.
The Gender Recognition Reform (Scotland) Bill, approved by MSPs in December, simplifies the process for trans people to change their gender.
But critics believe the "self-ID" plans pose a threat to the rights of women and girls and the UK Government used Section 35 of the original devolution legislation to block the law.
Somerville said the Section 35 Order was an "unprecedented challenge" to the Scottish Parliament’s ability to legislate.
She said: "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.
"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. 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."
Jack 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 Greens, who share power with the SNP in the Scottish Government, welcomed the move.
Maggie Chapman MSP said: “Trans rights are human rights and it is absolutely right for the Scottish Government to challenge this shameful decision. It is a vital step for trans rights and equality, and also for our democracy.
“Our Parliament voted overwhelmingly for Gender Recognition Reform last year. This vote followed years of consultation and the Bill was backed by MSPs from all Parties. It had a huge level of crossparty support and was backed by almost every reputable equalities organisation, including women’s organisations across Scotland, many of whom have been trans-inclusive for over a decade.
“Westminster is waging a sustained campaign of disinformation as part of a wider attack on our trans communities. The UK Government is threatening to roll back on basic rights that have existed for many years.
“It is shocking that we have been put in this position, but we cannot allow the rights and lives of trans people to be used as a political pawn in Westminster’s reactionary culture war.”
However, divisions exist in all the major parties on gender recognition reform.
Former SNP MSP Alex Neil said: “My own view is in terms of the challenge to the UK Government it would be far better just to reintroduce a Bill and this time in the Bill deal with concerns of women about places of safety for women and also deal with the UK Equality Act.
“We know that going to the Supreme Court, and every lawyer I have spoken to has told me, we don’t have a cat in hell’s chance of winning at the British Supreme Court.”
SNP MP Joanna Cherry, a vociferous critic of the Bill, said: “I cannot understand why @scotgov is taking legal action it’s unlikely to win rather than sorting out the problems with the #GRRbill at home. Reform could be effected in Scotland without breaching #equality or #HumanRights law if there was the will so to do.”
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