On Friday, December 8, judges in a Scottish court ruled that the UK government acted lawfully when vetoing Scotland’s 2022 Gender Recognition Reform Bill. The bill would have made Scotland the first country in the UK to offer a self-identification system for transgender people to change their legal documents.

In December 2022, Scotland passed a historic transgender rights bill that would have made it easier for people aged 16 and older to legally change their gender on official legal documents without needing to provide a medical diagnosis.

The bill earned support from members of all parties and passed by a majority vote of 86 to 39 in the Holyrood parliament. However, one month after the Gender Recognition Reform Bill passed, the UK government blocked the bill, claiming it could impact broader UK equality legislation.

This was the first time in history that the UK government invoked Section 35 of the 1998 Scotland Act, which allows them to stop a bill from becoming law if London believes it will have adverse consequences on matters that pertain to the national government.

The UK government gave no advance warning of their intention to use this power, and did not ask for any amendments to the bill throughout its nine-month passage through parliament. Many LGBTQ+ activists spoke out against the unprecedented move, calling it a shameful attack on trans rights.

Scotland’s former First Minister Nicola Sturgeon condemned the decision, saying that the UK government had “no grounds” to block the bill and describing it as a “full-frontal attack on our democratically elected Scottish Parliament and its ability to make its own decision on evolved matters”.

Ultimately, the Scottish government decided to pursue legal action and challenged the legal basis for the use of Section 35. In a 65-page ruling delivered on Friday, Lady Haldane rejected arguments that the UK government should have used a different mechanism to secure amendments to the bill.

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. (1/15)

— Scottish Trans (@ScottishTrans) December 8, 2023

Lady Haldane said: “Since the whole purpose behind the bill is to widen the category of those who may apply, and to simplify the overall process by which a certificate may be obtained, it cannot be asserted that the meaning overall of section 9 has not changed, looked at objectively.”

She added, “The words ‘full gender recognition certificate’ will no longer mean the same thing as they do currently, and focussing on the lack of amendment to the language of section 9 itself is to ignore the significance of a proposed amendment to the underlying meaning of a key component of that section.”

Colin Macfarlane, director of Nations at Stonewall said: “This unfortunately means more uncertainty for trans people in Scotland, who will now be waiting once again, to see whether they will be able to have their gender legally recognised through a process that is in line with leading nations like Ireland, Canada and New Zealand.”

“At a time when we needed hope, a dangerous precedent has been set: our democracy, our rights, our self-determination, can be vetoed at the whim of any Westminster government.

We will keep fighting for our rights and our dignity.” 🏳️‍🌈🏳️‍⚧️https://t.co/biDKD4d6I3

— Scottish Greens (@scottishgreens) December 8, 2023

Scottish Trans manager, Vic Valentine, urged Scottish ministers to lodge an appeal. They said, “We are really concerned that this judgment, if left unchallenged, means that trans people will continue to have to use the intrusive, unfair and expensive process for being legally recognised as who we truly are.”

Scottish Greens equalities spokesperson Maggie Chapman said the ruling was “a devastating day for equality [and] a democratic outrage”. She added that she hopes the Scottish government “will consider all options for appeal”.

The Scottish government has 21 days to appeal the Gender Recognition Reform Bill ruling. If they do appeal, the case will likely go to the UK Supreme Court.