Home > News > Court rules in favour of UK Government on Section 35 challenge

8 December 2023   |    News

Court rules in favour of UK Government on Section 35 challenge

We are very disappointed that the Scottish Government has lost its court case against the UK Government’s use of a Section 35 order to block the Gender Recognition Reform (Scotland) Bill from reaching royal assent.

All parties in the case agreed that it was not about the merits of the bill itself, and they agreed that the bill was within devolved powers. The court judgment is also not about whether or not the UK Government made the right decision in blocking the bill. It is simply about whether they have the power to do so, under section 35 of the Scotland Act. The court concluded that they do.

We made a written intervention in the case, to explain what a GRC does and does not do, and so that the court heard the voices of trans people before deciding on our rights. You can read that here: https://www.scottishtrans.org/wp-content/uploads/2023/09/JR-Intervention-Submission-for-EN-1.09.23-SIGNED.pdf

The Scottish Government could seek to appeal this judgement. If they do, and are granted permission, the case will be taken up by the Inner House of the Court of Session and heard by a panel of three judges. We hope that the Scottish Government will appeal – as if left unchallenged, trans people will continue to have to use the intrusive, unfair and expensive process for being legally recognised as who we truly are that a majority of MSPs voted to significantly improve last year.

Any appeal process would take several months, with the possibility of a further appeal afterwards to the Supreme Court. So it may be a long time yet before we know the final outcome of this case.

We know this will be a very difficult day for many trans people in Scotland who were hoping they would be able to use a simpler and fairer process to access their pre-existing right to be legally recognised as who they truly are. And we know from the initial impact of the block back in January this year that the media and discussion surrounding this decision can have serious impacts on our health and wellbeing.

If you do feel upset by this news, we would recommend looking away from the news and social media and turning to your loved ones and community for support. While it is helpful to stay informed, it can also be harmful to spend a lot of time focused on it, and it’s more important to look after our own wellbeing.

If you would like to speak to someone, you can contact LGBT Health and Wellbeing’s helpline here https://www.lgbthealth.org.uk/services-support/lgbt-helpline-scotland/  (Tuesdays, Wednesdays, Thursdays (12-9pm), Sundays (1-6pm)), Switchboard UK https://switchboard.lgbt/ (10am – 10pm everyday), or LGBT Foundation https://lgbt.foundation/helpline (weekdays 9am – 9pm, Saturday and Sunday 10am – 5:30pm).

We will continue to do everything we can to support the overturning of this block, and will keep you updated on any future developments, including if the Scottish Government decides to appeal this decision.

If you wish to read it, the full text of the judgement is available here: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2023csoh89.pdf

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