The Scottish government has lost a landmark legal challenge with London after a court ruled that UK prime minister Rishi Sunak’s administration acted within its powers to veto Holyrood legislation on gender self-identification.
Scotland’s first minister Humza Yousaf had sought to prevent Mr Sunak’s government from blocking a law passed by the Edinburgh parliament to make it easier for people to change their gender.
But the court of session in Edinburgh on Friday ruled that the UK government’s move – the first time London had used powers granted to it under the 1998 Scotland Act to over-rule the Scottish parliament – was lawful.
The decision from judge Lady Haldane leaves Mr Yousaf with a politically difficult decision on whether to appeal at the inner house of the court of session and ultimately to take the case to the UK’s supreme court.
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Critics of the bill have argued the legislation would put women at risk by allowing any male to self-identify as female and gain access to women-only spaces.
Holyrood’s bill, which had passed with support from two-thirds of MSPs in December, removes the need for a medical diagnosis for a legal gender change and lowers the age threshold from 18 to 16.
London argued that the legislation would affect the operation of UK-wide equalities protections.
Section 35 of the 1998 Scotland Act, sometimes referred to as a “nuclear option”, allows the UK government to block legislation passed by Holyrood if it infringes on laws “reserved” for Westminster.
The finding is a welcome development for Mr Sunak after a difficult week. Robert Jenrick, his immigration minister, quit on Wednesday in a row over the government’s Rwanda migration policy.
The British government’s Scottish secretary Alister Jack welcomed the judgment.
“Following this latest court defeat for the Scottish government, their ministers need to stop wasting taxpayers’ money pursuing needless legal action and focus on the real issues which matter to people in Scotland,” he said.
The Scottish government said it was considering the judgment. Shirley-Anne Somerville, Scotland’s social justice secretary, said London’s decision to challenge the legislation showed that “devolution is fundamentally flawed”.
Scottish Greens, whose co-operation gives the SNP a pro-independence majority at Holyrood, said the ruling was a “democratic outrage”.
Labour’s shadow Scottish secretary Ian Murray said the ruling should be respected and that it was disappointing that the legislation ended in a court battle. “It is shameful that after years of debate, trans people feel no more protected and women no more reassured,” he said. – Copyright The Financial Times Limited 2023
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