First minister questioned over ‘secret’ attempt to challenge Supreme Court ruling on sex

First Minister John Swinney has been asked for clarification amid reports his government is attempting to challenge the Supreme Court ruling on sex and gender. 

At First Minister’s Questions, SNP MSP Michelle Thomson asked about a report in The Times that in November the Scottish Government wrote to the Advocate General for Scotland, Baroness Smith of Cluny KC, who advises the UK Government. 

The government informed her that it would seek a legal ruling declaring that implementing the Supreme Court’s judgment would unlawfully infringe on the human rights of transgender criminals, if its other legal arguments against the Supreme Court's ruling fail.  

This is despite Scottish ministers consistently affirming in public that they accept the ruling.  

If Scotland’s highest civil court were to grant the declaration, it would state that to remove a biological male prisoner who identifies as female would be an unlawful breach of their human rights.  

Thomson told the chamber she is “confused” by the Scottish Government’s public position and recent reports suggesting otherwise.  

She said: “I’m not asking for comment on any legal action, but I am asking how the statements made in this chamber are compatible with the actions taken in secret by the Scottish Government.” 

Swinney told the chamber: “What the government is doing is exactly what we told parliament we are doing, which is taking forward the steps to ensure that we have the correct guidance arrangements in place to deal with the implications of the Supreme Court ruling.  

“That is the work that the government is undertaking and is always undertaking in this respect.” 

The Supreme Court’s judgment in April last year found in favour of For Women’s Scotland’s position over the Scottish Government’s that, for the purpose of the Equality Act, sex is based on biology.  

The ruling has broadly been interpreted to mean that biological males are not allowed in single-sex female spaces.