Scotland’s highest court is set to hear the Scottish Government’s legal challenge against a decision by UK ministers to block controversial gender reform legislation.
The substantive hearing challenging the UK Government’s use of the Section 35 order of the Scotland Act – which prevented the Gender Recognition Reform (Scotland) Bill from gaining royal assent – will be held in Edinburgh’s Court of Session.
Judge Lady Haldane will preside over the full hearing, beginning on Tuesday, and running for three further consecutive days.
The Scottish Government will set out its argument first over the first day-and-a-half, with the UK Government set to present its response up to day three.
The challenge comes after Scottish Secretary Alister Jack utilised never-before-used powers of the Scotland Act – the legislation which established the Scottish Parliament – to halt the gender laws which sought to simplify the process for trans people to self-identify and obtain and gender recognition certificate.
Scotland’s First Minister Humza Yousaf confirmed the legal challenge in April, adding it was necessary to “defend the Scottish Parliament’s democracy from the Westminster veto”.
Prime Minister Rishi Sunak said at the time his ministers had taken “careful and considered” advice before blocking the legislation, with concerns around how it impacted the reserved Equalities Act.
According to a 22-page petition published by the Scottish Government in April, officials have challenged the UK Government’s order on four counts that Mr Jack made a “material error of law”, that his concerns about the safeguards in the Bill were “irrelevant” to the order’s making and that his reasons were “inadequate”, which would make the order “unlawful”.
Scottish Government lawyers also described the Scottish Secretary’s decision as “irrational” in the official documents.
However, legal arguments published by the Lord Stewart, Advocate General for Scotland, last month disputes the claim Mr Jack acted “irrationally”, stating the Scottish Bill “modifies the law as it applies to the reserved matters”.
It added: “In making the order, the Secretary of State did not act irrationally on the basis of evidence which was before him or by taking into account any irrelevant considerations.”
LGBT organisations, including Stonewall, Gendered Intelligence and the Institute for Constitutional and Democratic Research (ICDR), will also be able to present written evidence to the court setting out what they argue are the adverse consequences of the UK decision.
The Scottish Courts and Tribunals Service is expected to livestream the hearings from 10am each day.
