UK Supreme Court case: where could the decision leave the Gender Recognition Reform (Scotland) Bill?

Introduction

If the Supreme Court finds in favour For Women Scotland (FWS) on Wednesday, it will mean that a Gender Recognition Certificate (GRC) does not change a person’s sex under the Equality Act 2010. There has been some suggestion that this could mean the resurrection of the Gender Recognition Reform (Scotland) Bill.

This blog sets out what the law says here, and why responsibility for the next move on the Bill would rest in the hands the Scottish Government.

Current position

The Gender Recognition Reform (GRR) Bill is currently paused, because the previous UK Government intervened to prevent it becoming law, based mainly (but not only) on concerns about its interaction with the Equality Act.¹ To do this, it made an Order under Section 35 of the Scotland Act. The Scottish Government took a judicial review against this, which it lost.

What happens to the Section 35 order if FWS win?

A victory for FWS would not mean that the UK Government was under any new duty under the Scotland Act to lift the s35 Order or, indeed, had new powers to do so. Leaving aside that effects under the Equality Act were not the only reasons cited for making it, the Order is now a piece of law that remains in force until the relevant formal process occurs. There is no obvious general precedent at Westminster for undoing a statutory instrument of the type used to make the s35 Order; anything done there would therefore be in uncharted territory, though it seems likely it would need further secondary legislation in both Houses of Parliament.

Mechanism for lifting a Section 35 order

In any event, the Scotland Act sets out the mechanism for undoing a s35 Order. Section s35(5) provides that an Order ceases to have effect if the Bill is ‘reconsidered’ by the Scottish Parliament. This means that, in the event of the Supreme Court deciding that a GRC did not change someone’s sex under the Equality Act, the first decision on what should happen next in relation to the GRR Bill would be for the Scottish Government. This process has been available to the Scottish Government since the s35 Order was made, but it has chosen not to use it to bring forward a new version of the Bill.

Back to Stage 3

If the Scottish Government believed the court’s decision removed the legal basis for the block on the Bill, then under s36 of the Scotland Act, it could ask the Scottish Parliament to reconsider it: the process is set out in the Parliament’s Standing Orders (para 9.9).

Reconsideration means re-running Stage 3, with tightly limited scope to make amendments. If Ministers secured renewed parliamentary approval for the Bill, they could then put it forward again. Doing this would mean the existing s35 Order would automatically fall. The UK government would then need to decide whether it had sufficient continuing reasons, unrelated to the effect of a GRC under the Equality Act, to justify blocking the bill again.

Conclusion

If FWS win on Wednesday, and questions come up about the GRR Bill, Scottish Ministers may be tempted to divert attention onto what the UK government is, or is not, doing about the s35 Order. But that would be misdirection.

If the Scottish Government really believe that the judgment removes the legal basis for the current Order, and wants the Bill to proceed, it would be its job to kick-start the bill process back into life at at Holyrood. If it loses the case, and does not do this, then any complaints about UK inaction should be taken with a large pinch of salt.

The outcome of the court case remains unknown, as of today, and the detail of the judgment will be important, as well as who wins and loses. But any speculation that a win for FWS would make the resurrection of the GRR Bill inevitable, or would mean the spotlight moving onto the UK government, is misjudged.

At a special press briefing today, the First Minister, John Swinney, announced that the Programme for Government for 2025-26 would be announced early, on 6 May, and that he would be “laser focused on delivery.” Should the Scottish Government lose in the Supreme Court on Wednesday, whether to expend further political capital on reviving his predecessor’s controversial project to put gender self-identification into law, ahead of the 2026 Holyrood election, will be for John Swinney to decide.

Notes

1. Potential adverse effects under the Equality Act were the main part of the UK government case (here). However, the case also cited other unwanted cross-border effects, related mainly to the practical impact on various UK-wide systems, including social security. In rejecting the Scottish Government’s challenge to the Order, the Outer House of the Court of Session in Scotland stated that “each reason articulated individually amounts to an adverse effect which justifies the making of the Order”(para. 77, emphasis added). ↩︎