Substantive HearingTuesday, 19 September 2023 (and the following 3 days)
Judge Lady Haldane
- Agents and Counsel For the petitionersAgents: The Scottish Government Legal Directorate
- Counsel: The Lord Advocate (Dorothy Bain, KC), Douglas Ross, KC and Paul Reid
- For the respondentAgents: Office of the Advocate General
- Counsel: David Johnston, KC, Christopher Pirie, KC and Megan Dewart
A summary of the Procedural Hearing heard on 16 August regarding the Petition of the Scottish Ministers for Judicial Review of the Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023The court allowed adjustments to the Answers for the respondent to be received late. The adjusted petition and adjusted answers are now to be treated as the final documents setting out the parties respective cases.
Case description
The Gender Recognition Reform (Scotland) Bill was introduced on 2 March 2022. It proposed wide-ranging reforms to the process for obtaining a Gender Recognition Certificate in Scotland (a SGRC), which is currently governed by the Gender Recognition Act 2004. This includes: replacing the Gender Recognition Panel with the Registrar General for Scotland; reducing the minimum age of applicants from 18 to 16 years; reducing the current requirement that the applicant have lived in the acquired gender for 2 years to 3 months; and removing the requirement that there be a medical diagnosis of gender dysphoria. Applicants who changed gender outside the UK, whether or not within an “approved territory”, are to be treated for all purposes as having a SGRC, except where public policy reasons require otherwise. A SGRC has effect in other parts of the UK only where specific provision has been made to that effect by the respective governments.
The UK Government first raised concerns about the Bill on 19 December 2022. On 22 December the Bill passed. On 17 January 2023, the Secretary of State for Scotland made an order under section 35 of the Scotland Act 1998 (see Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023). Section 35 empowers the SoS to “intervene in certain cases”, namely where a Bill contains provisions which would “make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters”. The effect was to prevent the Bill being submitted for Royal Assent. Schedule 1 of the Order identifies the particular provisions which the SoS considers falls foul of section 35. Schedule 2 and a Policy Statement of Reasons sets out the SoS’s reasoning. In short, the SoS considers that the Bill creates two distinct and parallel regimes across the UK; increases the potential for fraudulent applications with a consequent impact on the safety of women; and impacts upon the operation of the Equality Act 2010, the effect of obtaining a GRC being that the person has the protected characteristic of their acquired sex. Further impacts upon reserved matters are said to be on the administration of tax, benefit and State pensions managed by integrated systems across the UK that span reserved and devolved functions. The reserved matters to which the law applies in that respect are “fiscal policy” and “social security”.
The petition for judicial review of the Order seeks its reduction. The petitioners contend that the requirements of section 35 are not met. First, the alleged adverse effects of the Bill are founded upon material errors of law. Secondly, the SoS’s concerns are unsupported by evidence and thus irrational. Thirdly, irrelevant considerations were taken into account; in particular, policy differences and disagreements between the Scottish Parliament and UK Government. Fourthly, the SoS gave inadequate reasons in Schedule 2 for making the Order. In any event, the reasons contained in that schedule and in the Policy Statement are irrational. The UK Government submits that Schedule 2 and the Policy Statement provide adequate reasons for making the Order. The Order was within the range of reasonable responses available to the SoS in light of the adverse effects that he identified. Even if the Order was unlawful, there is no substantial prejudice to the petitioners such that the Order requires to be reduced.
The court has granted leave to four interveners to lodge written submissions.
The first to third interveners comprise LGBTQ+ and trans-led charities, as well as a researcher on constitutional issues. Their joint intervention will provide: international comparators, where similar measures have been adopted, to demonstrate that the SoS’s concerns are unwarranted; evidence to refute the SoS’s concerns about the adverse effects on the operation of the 2010 Act; and parliamentary materials highlighting the standard of scrutiny to be applied by the court and that the power under section 35 is one of last resort.
The fourth intervener is also a charity operating the only trans-specific human rights project (which promotes equal rights in Scotland in relation to gender identity and reassignment). They contend that: the Order is inadequately reasoned; the reasons assert facts without, or contrary to, relevant evidence; and that the SoS conflated a section 104 order, which he could have utilised to make consequential modifications to the Bill by means of subordinate legislation, with a section 35 order. It follows that the decision to make a section 35 order was irrational.