NINE months after Alister Jack blocked the Gender Recognition Reform (Scotland) Bill from becoming law, the Scottish and UK governments are set to face off in court.
Law officers for both governments will take part in three days of submissions at the Court of Session in Edinburgh, beginning on Tuesday.
Judge Lady Haldane will preside over the proceedings, which are set to be the first stage in a lengthy court battle over whether or not the Scottish Secretary was right to use Section 35 of the Scotland Act to stop the legislation from being given Royal Assent.
But how did we get here, what will happen, and how can you watch the proceedings?
What did the Gender Recognition Reform (Scotland) Bill do?
The reforms changed the process for a transgender person in Scotland to obtain a Gender Recognition Certificate (GRC), currently governed by the Gender Recognition Act 2004.
The changes would replace a Gender Recognition Panel with the Registrar General for Scotland, reducing the time required for the applicant to live in their “acquired” gender from two years to three months, and removing the requirement for a medical diagnosis of gender dysphoria, allowing the applicant to self-identify.
It also reduced the minimum age of applicants from 18 to 16, with teenagers having stricter rules imposed, such as living in their acquired gender for six months.
Section 35 order used for the first time
In January, the Scottish Secretary blocked the legislation, which received cross-party support from MSPs in Holyrood, from becoming law by using a then little-known section of the Scotland Act. This stopped the bill from being given royal assent and becoming law.
Section 35 allows UK ministers to intervene where legislation would “make modifications” in relation to reserved matters and would have an “adverse effect” on the operation of a law.
Jack argued that the legislation interferes with UK-wide equality law, particularly the Equality Act 2010.
What are both sides' arguments?
The Scottish Government have disputed Jack’s arguments, as gender reforms are a devolved area, and say the requirements for a Section 35 order were not met.
This is the issue that will be tested in court, and whether or not the Scottish Secretary’s arguments stack up.
At the time, then-first minister Nicola Sturgeon said she had not heard a single “persuasive or compelling argument” that the gender reform legislation would impact the UK-wide Equality Act.
The Scottish Government will argue that Jack’s arguments on the impact of the legislation on UK-wide law are based on material errors of law, which they have described as “irrational” and unsupported by evidence.
They will also say that irrelevant considerations, such as policy differences between the two governments were used in his arguments, as well as that Jack gave “inadequate” reasons for using a Section 35 order.
In the UK Government’s submission to the court, published in August, the Advocate General Lord Stewart rejected claims that Jack had acted “irrationally” in blocking the legislation.
The UK Government’s most senior lawyer in Scotland said Scottish ministers would need to prove that the Scottish Secretary acted in a manner “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”.
The court has allowed four interventions to be submitted to the courts regarding the case, three from LGBT charities including Stonewall and Scottish Trans, as well as a researcher on constitutional issues.
Is the future of devolution and equality at stake?
Many in the Scottish Government have argued that the use of a Section 35 order is the latest attack on Scottish democracy from the UK Government. First Minister Humza Yousaf has said that the intervention is an “undemocratic veto” over Holyrood legislation.
It has also been described as a "watershed" moment for devolution.
Speaking ahead of the court case, Scottish Greens MSP Maggie Chapman, the party’s equality spokesperson, said: “Everybody deserves to be treated with dignity and respect, and to be recognised as the person they are. GRR has always been a simple step towards doing that.
“Yet UK Government ministers and others have knowingly scapegoated, demonised and ridiculed a small and vulnerable minority as part of a shameful and cynical culture war.
“It is shocking that we have been put in this position. If the Section 35 order is allowed to stand it will set a terrible precedent for human rights and devolution.
“If the UK Government succeeds in overriding the decisions of our parliament then we can be sure it won’t be the last time they try it.”
The gender reforms were one strand of the Bute House Agreement between the SNP and Scottish Greens.
What to expect from the three-day hearing
The hearing at the Court of Session in Edinburgh will be livestreamed on the Scottish Courts and Tribunals website, starting at 10am on Tuesday September 19.
While the procedural hearing livestream in August had some technical difficulties, it was agreed then that the petitioner, the Scottish Government, led by Lord Advocate Dorothy Bain, will be given the first day to speak and finish their submissions by 12.30pm on the second day. Douglas Ross KC and Paul Reid will also be acting for the Scottish Government.
UK Government law officers will then be given the remainder of the second day and the final day, Thursday September 21, to respond. The Office for the Advocate General will be represented by David Johnston KC, Christopher Pirie KC and Megan Dewart.
But - don’t expect a final decision after three days of submissions. It will take around six weeks for the outcome to be known, and legal experts have said the outcome will be appealed by the losing side.
This will mean a further hearing at the Inner House of the Court of Session, and likely then the Supreme Court, pushing a final decision well into 2024.
