Gender Recognition Reform (Scotland) Bill: reflections on the first day of the judicial review of the Section 35 Order

opened notebook with three assorted color pens

Yesterday saw the first day of the Scottish Government’s (SG) challenge to the Section 35 Order applied by the UK Government to the Gender Recognition Reform (Scotland) Bill. Information on how to view the remaining proceedings are provided here, along with links to the key submissions to the court (with two notable exceptions, discussed further below).

There were around 45 people in court. Over half appeared to be attending in a professional support capacity to either the Scottish or UK Government; the remaining attendees included several journalists, and interested members of the public.

Most of the session was taken up by the presentation of the Scottish Government case. The UK Government started its case, having around 20 minutes before the court finished for the day. Today will be the main day for the UK Government arguments.

This blog highlights a few points from the Scottish Government’s case, from our perspective of following the Bill process closely since 2019, and as non-lawyers. It is not a comprehensive discussion of all the points made: our focus here is on the Scottish government’s account and interpretation of events.

Live tweets are available from Tribunal tweets and Phillip Sim of BBC Scotland (and very probably some others). STV have posted a link to a recording of the full proceedings: Live: Scottish and UK governments in court over gender reform block – YouTube.

“Hostile communications”

The SG referred to the Secretary of State (SofS) recording seven letters he had received, six of which the Lord Advocate Dorothy Bain KC  (LA) characterised as “hostile communications” about the Bill. This includes letters from the Equality and Human Rights Commission (EHRC), the UN Special Rapporteur for Violence Against Women and Girls, and ourselves.  We think the emotional choice of language – “hostility” rather than critical or opposing – bears noticing.

The LA used this list to demonstrate bias on the part of the SofS, but the SofS appears simply to have listed all the letters he received. We were responding to his announcement that he was considering using the powers under Section 35. It is not clear why other organisations, including those supportive of the Bill and with paid staff, did not put their case in writing.

References to the interveners

The LA relied heavily on the unpublished written interventions from Stonewall and the Equality Network. She mentioned Stonewall, in particular, multiple times, quoted from its evidence at length at several points, and answered questions from the judge about its content. Her main departures from the Note of Argument the SG published in advance were to bring in material from these two submissions.

Stonewall and the Equality Network have told us they will not be publishing their submissions before the judgment is issued, on advice from their lawyers. As Phillip Sim of the BBC tweeted:

Retired KC Jonathan Mitchell has also commented on this.

Section 104 order discussions with UK Government

The LA mentioned that the SG approached the UKG for discussions about s104 Orders in January 2022. The LA’s case made the availability of these orders as a means of addressing any concerns about devolved/reserved matters a central complaint against the SofS.  She did not develop this point further, to explain that the SG took until October to produce information in the form needed, taking first three, and then four and a half, months to respond to requests from the Scotland Office, as discussed here:

Intergovernmental relations

More generally, the discussion of obligations for timely and sufficiently detailed intergovernmental discussion was referred to as though all responsibility fell on the UK government. The LA advanced an almost entirely passive role for the SG, even in a context where it was the party putting forward new legislation.

There was no reference by the LA to the concerns raised with the SG by the EHRC from January 2022 onwards, to the letter sent by the Minister for Women and Equalities to the Cabinet Secretary on 7 December (unpublished, but mentioned in the SG petition to the court), or to their meeting on 19 December.

Overseas track

The LA suggested that as there was “no particular issue arising from the current system of overseas recognition” and the list of approved countries includes some operating legal gender recognition systems based on self-declaration, this was evidence against a self-declaration model having adverse effects.

As we explain in this blog, between 2009/10 and 2022/23 the UK Government issued just 216 full overseas GRCs.

No country has been put on the list which has a self-declaration model. The UKG has only been slow at updating the list to remove those which have moved that way, but has stated its intention to review the list with a view to updating it.

In the blog above, we argue that trying use the overseas list as an argument for self-declaration being unproblematic is a red herring.

Bill development process and parliamentary passage

In general terms, the description of the Bill development process by the Scottish government and its parliamentary passage bore little resemblance to that witnessed by those following the Bill from anything other than a position of unqualified support for its contents.

Counsel for the UK Government will continue their oral submissions today. Three days have been set aside for the hearing, meaning that it could continue into tomorrow (Thursday 21 September).