The Scottish Government will announce its decision on whether to appeal against the Court of Session’s gender reform ruling on Wednesday.
In a major blow to Humza Yousaf’s government, the Court of Session dismissed the appeal against Westminster’s decision to override MSPs and axe the gender self-identification bill.
The ruling found that the UK Government’s blocking of the Gender Recognition Reform (Scotland) Bill using Section 35 of the Scotland Act was lawful.
The legislation, if enacted, would make it easier for transgender people to acquire a gender recognition certificate (GRC), changing their legal sex by, among other changes, removing the requirement for a medical diagnosis of gender dysphoria.
The Bill caused controversy during its passage last year, with opponents claiming it could endanger the safety and rights of women and girls while its supporters – including the Scottish Government – said it was a minor clerical change that would affect a small number of trans people in Scotland.
The First Minister has come under pressure – including from former leadership rival Kate Forbes – to drop the legal challenge and scrap the Bill.
In an interview with STV News, Yousaf said the decision showed devolution is “fundamentally flawed” and said the only way for Scotland to fully self-govern is through independence.
He said: “I think ultimately, while we of course respect the court’s judgment, it essentially means that devolution is fundamentally flawed, that we can pass a bill that is within the Scottish Government’s competence, within the Scottish Parliament’s competence, passed by a majority of the Scottish Parliament but can be overruled and vetoed at the stroke of a pen by the UK government.
“To me that is not self-government in any way, shape or form. And the only way you get self-government, now, it’s clear, is with Scottish independence.”
When asked if recent court decisions which have gone against the Scottish Government mean legal advice it has received has not been “what it could be”, Yousaf responded that he would not discuss legal advice.
He continued: “I think it was really important to have challenged the Section 35 order in the courts, to understand whether or not, frankly, as we now understand, that devolution is flawed or not.
“And it is because we have a piece of legislation passed by a majority of the parliament. In fact, members of every single political party, including some Conservatives, supported the legislation. And now it has been effectively vetoed by the UK Government and I find that unacceptable.”
Scottish secretary Alister Jack, who made the order to block the legislation, said in a written statement submitted to the Commons he was concerned the Bill would impact on “important Great Britain-wide equality protections”.
“My decision was about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters,” he said.
“As I set out when I made the Section 35 order, transgender people deserve our respect, support and understanding.”
Scottish Tory deputy leader Meghan Gallacher has also written to the First Minister, urging him to abandon the Bill, claiming it would put “women and girls at risk”, and a further challenge would not be a good use of public money.
“I would urge you and your Government not to appeal the ruling issued on Friday and ignore your Scottish Green colleagues who have urged you to continue spending taxpayer money on this flawed Bill.
“The Scottish Government has spent too much time and too many resources on this legal challenge.
“The public would rather that their Government focus on more pressing issues such as cutting down NHS waiting lists, improving education standards and addressing the housing emergency.”
Meanwhile, Alba Party Holyrood leader Ash Regan has tabled a motion at Holyrood calling for the legislation to be scrapped.
“Hundreds of thousands of pounds have already been wasted and it would be unimaginable for the Scottish Government to appeal this decision and then ultimately proceed to a situation of potentially asking the UK Supreme Court to overturn a decision of Scotland’s highest court,” she said.
“I resigned from the Government as I simply could not support legislation that is so ill thought out, opposed by women’s groups across Scotland and a fundamental risk to the safety of women and girls.
“The Scottish Government lost the battle in court and they will further lose the support of the people of Scotland if they keep pursuing this policy.
“I urge Humza Yousaf to now completely scrap his Government’s gender reforms.”
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