What the Bill Does
Passed by Holyrood in December 2022, the Gender Recognition Reform Bill seeks to make the process of obtaining a Gender Recognition Certificate more accessible. It lowers the minimum application age from 18 to 16. It removes the requirement for a medical diagnosis of gender dysphoria. It shortens the period applicants must have lived in their acquired gender from 2 years to 3 months.
Scottish Devolution and Constitutional Limits
The 1997 Scottish devolution referendum saw 74 per cent of voters support the creation of a Scottish Parliament. The Scotland Act 1998 followed, establishing devolved powers and defining reserved matters. In 2022, the Supreme Court held that Holyrood cannot legislate for an independence referendum because constitutional matters remain reserved under the Act of Union 1707. This ruling reaffirmed the limits of devolved competence.
Section 35 of the Scotland Act 1998 allows Westminster to block Scottish legislation that it believes would adversely affect the operation of UK‑wide law. Its use in relation to the Gender Recognition Reform Bill marked the first time the power had been exercised since devolution.
Why Westminster Blocked the Bill
On 16 January 2023, Scottish Secretary Alister Jack announced the Section 35 order. He stated that the Bill would have an adverse impact on the operation of Great Britain‑wide equalities legislation. Westminster argued that the reforms could affect the functioning of the Equality Act 2010, particularly regarding single‑sex spaces and equal pay rules. Concerns were also raised about the possibility of fraudulent applications.
Supporters of the Bill note that gender recognition systems from countries such as Canada and Australia are already recognised by the UK Government. They also emphasise that gender recognition is a devolved matter. Holyrood’s Equalities, Human Rights and Civil Justice Committee concluded that the Bill does not modify the Equality Act 2010. The Bill includes safeguards criminalising fraudulent applications. Lord Falconer expressed the view that the Section 35 order was not justified.
Judicial Review and What Comes Next
Holyrood has initiated judicial review proceedings to challenge the Section 35 order. Former First Minister Nicola Sturgeon and Scottish Social Justice Secretary Shirley‑Anne Somerville both stated that the challenge is intended to protect Scotland’s democratic processes. First Minister Humza Yousaf has continued this position.
The Court of Session will review the petition, which alleges material errors of law, irrationality, irrelevant considerations and inadequate reasoning. Supporters of the Bill highlight that earlier UK Government consultations in 2017 and 2019 did not raise concerns about similar reforms. They also note that no objections were raised during the Bill’s nine‑month passage through Holyrood.
Lord Hope expressed concerns about how the Bill might interact with UK‑wide legislation and stated that the judicial review faces significant legal hurdles.
Political Context
Public opinion on the Bill is divided. A recent YouGov poll found that two‑thirds of Scots oppose its main features. The Bill has become a focal point in wider debates about devolution, constitutional authority and the relationship between Holyrood and Westminster.
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