Claiming Scotland’s gender recognition reform bill was blocked because Westminster disagreed with it is a “red herring”, according to a lawyer acting for the UK government
On the second day of the Scottish government’s legal challenge to No 10’s veto of the bill, David Johnston KC told the court of session in Edinburgh that the first ever use of the section 35 power was in “no way unconstitutional”.
The bill was passed by a cross-party majority in Holyrood last December and would make Scotland the first part of the UK to introduce a self-identification system for people who want to change their legally recognised sex.
On Tuesday judge Lady Haldane acknowledged the court was in “uncharted territory” over a case that revolves around two of the most fiercely contested issues of the moment: the UK constitution and gender identity.
On Wednesday, Johnston urged Haldane to reject the Scottish government’s petition to rule the veto – which is contained in the Scotland Act, the founding legislation of the Scottish parliament – as unlawful.
Setting out the UK government’s case, Johnston said that the principal concern was the interaction between the 2004 Gender Recognition Act – which set up the certification process being reformed by the Holyrood bill – and the Equality Act.
“The changes proposed by the bill amount to a modification of that law because they change the conditions set by the 2004 act for a change of legal sex,” said Johnston. On Tuesday, Scotland’s most senior law officer, the lord advocate, Dorothy Bain, said the bill left UK law “untouched”.
Johnston also rejected international evidence, presented in submissions by Stonewall and others, upon which Bain relied on Tuesday, saying it was of “very limited assistance” to the court because there was no uniform process worldwide or comparable constitutional arrangements to the UK and Scotland.
Pointing to concerns about the impact of the bill on safeguarding, access to services, membership of clubs, equal pay claims and cross-border management, he said it was “simply off the mark” to suggest these reasons were inadequate, as Bain did on Tuesday.
Haldane said she would issue her opinion at a later date. There are expected to be appeals against her ruling at the supreme court in London regardless of who wins at this first stage.
