What Chance Does The Gender Reform Bill Have?
One of the things to look out for when reading coverage of a legal case is supposed ‘concern’ over the cost of the action. The implication from these headlines is that the proceedings are frivolous and a waste of time.
Thus when The Scotsman leads with:
…the not-so-subtle-subtext is that £500,000 is too much and what a waste of money this is when [insert generic public good] needs money too.
In truth, the Scottish government does not stand a brilliant chance of success, as I wrote about after the Secretary of State for Scotland, Alister Jack, originally signed the Section 35 Order.
Section 35 effectively operates as a veto. There are certain matters that are ‘reserved’ to Westminster (in this case equal opportunities) and if the Secretary of State for Scotland has reasonable grounds to believe that a Bill of the Scottish Parliament would have an adverse impact on that reserved matter then they can make an order that will stop the legislation before it even receives Royal Assent.
That will be the question for the courts: did the Scotland Secretary have reasonable grounds?
Alister Jack did indeed set out his reasons and when Westminster puts forward its defence there will likely be reference to the effect that the Bill would have on schools, single sex spaces as well as the legal impact on the Public Sector Equality Duty and anti-discrimination law in general.
As the test for what is “reasonable grounds” is based on Wednesbury reasonableness and therefore a relatively low threshold, Jack has a strong chance of success but it is by no means a guarantee.
The administrative problems that the Scotland Secretary speaks of are extremely minimal given the small number of young trans people that will be affected by the reforms. Similarly the legal issues are over-stated because most of the new rights that would be available to trans people are already covered by anti-discrimination law.
Whatever happens in the case, it is important that these arguments are made public and the weakness of the Secretary of State’s reasoning is exposed. This may ultimately be another legal victory for the Westminster government but it is wrong to say or imply that the challenge itself is a waste of public funds. At the very least, it will define the limits of section 35 and tell us more about the nature of devolution in the UK.
Next time you see a media outlet questioning the ‘value’ of legal proceedings, think about how that says more about that outlet’s political views or alignment more than anything else.
This week’s episode of the podcast is a useful complement to the piece I wrote for subscribers last week about the Parole Board. We discuss the status of the board as well as recent efforts to undermine that status as well.
Episode link: https://uklawweekly.com/2023-uksc-13/
Make a difference today,
Marcus