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by Kirsteen Paterson
17 January 2023
Gender reform: Sturgeon vows to go to court to ‘defend Scottish democracy’

Gender reform: Sturgeon vows to go to court to ‘defend Scottish democracy’

The UK Government block to Scotland's Gender Recognition Reform (GRR) Bill is a "profound mistake" and will "inevitably end up in court," First Minister Nicola Sturgeon has said.

Her comments came in a BBC interview as MSPs debated the impact of the landmark decision. 

Sturgeon said that in taking the decision to court her government will "be vigorously defending something else, and that is the institution of the Scottish Parliament and the ability of MSPs, democratically elected, to legislate in areas of our competence".

She went on: "In short, we'll be defending Scottish democracy".

Meanwhile, Shona Robison has said she is “struggling to understand what amendments would need to be brought to the bill” after Scottish Secretary Alister Jack prevented it from being sent out for royal assent. 

The reasoning for that was published this afternoon, with the Westminster government arguing against the establishment of two diverging systems of gender recognition within the UK. 

Scottish Labour’s Monica Lennon branded that move a “cynical and dangerous power move by an out-of-control UK Government". 

The decision they have taken is political & it is a sad day for democracy

Robison called the decision “a dark day for trans rights and a dark day for democracy”, saying: “I question why the UK Government has chosen for the very first time a section 35 order against the clear will of this parliament on an issue within this parliament's competence rather than for example, a section 33, if there were issues with reference to reserve matters, and I question what the implications are for future legislation of this parliament.  

“The secretary of state says that he wants to find a constructive way forward. But the UK Government had multiple opportunities to provide constructive comments during the extensive consultation on the bill and during its passage and it did not do so.  

“It does not agree with the bill so it has blocked it. The decision they have taken is political and it is a sad day for democracy and for devolution.” 

She went on: “I want to be very clear to all trans people that I know will be incredibly upset by this decision, this government will seek to uphold the democratic will of this parliament, as a statement of reasons was only made available just over an hour ago. We will now take time to consider it fully and I'll return to parliament to date on the next steps." 

The comments came hours after Jack appeared in the House of Commons to give a statement on the matter. He was questioned by MPs about the decision and the next steps. 

The Tory MP has said he would work with the Scottish Government to make changes to the bill. 

the onus is on the Secretary of State to make his position clear

However, First Minister Nicola Sturgeon has said she stands ready to “robustly” defend the legislation in court and it is expected that the Scottish Government may now pursue a judicial review. 

Conservative MSP Rachael Hamilton asked Robison if she would accept an offer from Jack to work with him to resolve the UK Government’s issues with the legislation, which was agreed by two thirds of MSPs in December. 

Robison replied: “I am always up for discussion with the Secretary of State or anyone else but I thought it was quite telling that an answer to one of the questions during his statement the Secretary of State said there cannot be two different regimes for gender recognition in the UK. So I'm struggling, therefore, to understand what amendments would need to be brought to the bill and what amendments would be a load to the bill in order to avoid two different regimes for gender recognition.  

“Does that mean that essentially we would have to revert to the 2004 process? He was unable to answer any of the questions from across the chamber asking for specifics on what amendments would be required, so I'm all up for discussion, but I think the onus is on the Secretary of State to make his position clear and explain what he means by that.” 

Pam Duncan-Glancy asked Robison to admit that the SNP-Green administration knew there could be “cross-border” issues over the GRR Bill prior to its passage, with reassurances given to opposition MSPs. 

Robison said “every bit of legislation has cross-border issues” and officials from both administrations were in discussions for many months, but “behind the scenes there were plans afoot, obviously, for a section 35 order”. She said: “Let’s put the blame where it lies. We have done this in good faith in order to improve the lives of trans people. I don’t think that is the motivation of the UK Government here.” 

LibDem leader Alex Cole-Hamilton said the UK Government’s reasoning “suggests that no amendment to the bill would satisfy the UK Government’s concerns”.  

Meanwhile, it has been confirmed that Holyrood’s Equalities, Human Rights and Civil Justice Committee has invited Jack and Robison to give evidence at its meeting on Tuesday.

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