What is the Section 35 order used to block the Scottish parliament’s gender reforms?

Tensions over the union of the United Kingdom and trans rights intensified last night, when proposed legislation passed by the Scottish parliament to make it easier for transgender people to have their gender legally recognised was blocked by the UK government using a Section 35 order.

What was the bill?

That would be the Gender Recognition Reform (Scotland) Bill, brought forward by the Scottish government led by Nicola Sturgeon and the Scottish National Party.

The bill was passed after a lengthy debate last month, and makes it easier for transgender people in Scotland to obtain a Gender Recognition Certificate (GRC) – a document which legally recognises a person’s gender and allows them to update their birth, marriage and death certificate details, and enter marriage or a civil partnership in that gender.

In the bill’s explanatory notes, it states the draft law repeals sections one to eight of the Gender Recognition Act (the act concerning the issuing of GRCs) in terms of how they apply to Scotland.

Instead, some of the replacement policies include “the removal of the requirement for an applicant to have or have had [a diagnosis of] gender dysphoria”, a reduction in the age limit from 18 to 16, and the period in which an individual has to live in their “acquired gender” before applying from two years down to three months.

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It also introduces a specific offences around falsely making a statutory declaration or providing false information as part of their application for a GRC, with punishment taking the form of up to two years’ imprison and/or a fine.

Why is the UK government concerned?

So this bill sounds like a Good Idea and something which makes lives a little easier for trans people, a community which has come under constant attack in the world of politics and the news media.

Sounds good to us.

However, keen to make yet another terrible decision and anger a lot of people, the UK government – led by the Conservatives, of which only three out of its 31 Members of Scottish Parliament voted for the bill to pass – has said it is “concerned” about the Scottish legislation.

The secretary of state for Scotland, Alister Jack MP, said in a statement on Monday: “After thorough and careful consideration of all the relevant advice and the policy implications, I am concerned that this legislation would have an adverse impact on the operation of Great Britain-wide equalities legislation.

“Transgender people who are going through the process to change their legal sex deserve our respect, support and understanding. My decision today is about the legislation’s consequences for the operation of GB-wide equalities protections and other reserved matters.

“I have not taken this decision lightly. The Bill would have a significant impact on, amongst other things, GB-wide equalities matters in Scotland, England and Wales.”

Specifically, the government has expressed concerns over how the Scottish bill would affect the UK-wide operation of the Equality Act 2010.

As such, Mr Jack invoked powers under Section 35 of the Scotland Act 1998, allowing him to make an order preventing the bill from receiving Royal Assent, the final ‘sign-off’ from the monarch to say a law is now in effect.

It is the first time the UK government has made such an order.

What is a Section 35 order?

Far from your favourite meal you buy from a takeaway menu, this section of the Scotland Act – the same act which established the Scottish parliament – states if a Bill “contains provisions” which make “modifications of the law as it applies to reserved matters” and would have “an adverse effect on the operation of the law” around reserved matters, he can block the parliament’s presiding officer from submitting the bill for Royal Assent.

The secretary has four weeks after the passing of the bill to make the order, if they so please.

Reserved matters, meanwhile, means areas and laws which the Scottish parliament cannot amend or change in any way. One of these mentioned in the 1998 act is “equal opportunities”, save a few exceptions.

Under these exceptions, though, it states these do not include “any modification of the Equality Act 2010”.

So what does the Equality Act say?

It outlaws discrimination in relation to a select number of “protected characteristics”, of which “gender reassignment” is one of them.

Nothing under that section mentions a GRC, but rather states a person has the protected characteristic of “gender reassignment” if an individual is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

So what does Nicola Sturgeon and the Scottish government make of all of this?

As you might expect, Nicola Sturgeon, who already isn’t happy with the UK government’s attitude to a second Scottish independence referendum isn’t exactly pleased with a decision she’s described as a “full-frontal attack on our democratically elected Scottish parliament and its ability to make its own decisions on devolved matters”.

“[The Scottish government] will defend the legislation and stand up for Scotland’s parliament. If this Westminster veto succeeds, it will be [the] first of many,” she wrote.

Speaking during a press conference earlier that day, when it was rumoured the UK government would take the action it ended up taking, she claimed there are “no grounds to challenge this legislation”.

She added: “It is within the competence of the Scottish parliament, it doesn’t effect the operation of the Equality Act, and it was passed by an overwhelming majority of the Scottish parliament after very lengthy and very intense scrutiny by MSPs of all parties represented in the parliament.

“So if there is a decision to challenge, then in my view, it will be quite simply a political decision. I think it will be using trans people – already one of the most vulnerable, stigmatised groups in our society – as a political weapon, and I think that would be unconscionable and indefensible and really quite disgraceful.”

As part of the bill’s introduction to parliament, both the Scottish cabinet secretary (Shona Robison MSP) and the presiding officer (Alison Johnstone MSP) issued statements expressing their view that the bill was “within the legislative competence of the Scottish parliament”.

A Scottish government spokesperson previously told the Scottish Daily Express: “Any attempt by the UK government to undermine the democratic will of the Scottish parliament will be vigorously contested by the Scottish government."

A likely way for the Scottish government to do this is to challenge the Section 35 order with a judicial review.

That’s yet to be formally announced, and the political fallout over the UK government’s actions continue.

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