The suggestion that men would use gender self-ID laws to attack women is not “rational”, lawyers representing the SNP government have told a court.
The Scottish government is seeking a judicial review at the Court of Session in Edinburgh, claiming the UK government’s veto of its gender self-ID law should be overturned.
Lord Advocate Dorothy Bain KC, the Scottish Government’s most senior law officer, argued the reasons used to justify the veto were “theoretical” and “very unlikely to arise in practice”.
She said international evidence did not support concerns raised by Alister Jack, the Scottish Secretary, that introducing self-ID would lead to a surge in fraudulent applications from men wanting to access women’s safe spaces.
Setting out her case for the UK Government veto to be quashed, she argued that Mr Jack had in reality blocked the legislation because he disagreed with the self-ID policy.
But she said it was “never intended” that he should have such a power as this would be tantamount to Holyrood only being able to introduce a particular policy if the UK Government agreed with it.
Mr Jack made an order under Section 35 of the Scotland Act, which created devolution, to prevent the Bill getting Royal Assent - the first time the power had ever been used.
He argued the legislation undermined UK-wide protections for women, including sanctity of female-only safe spaces, but Ms Bain said his reasons for issuing the order were not “rational”.
Arguing that he had acted unlawfully, she said a Scottish gender recognition certificate issued under the self-ID system would be “of no effect elsewhere in the UK”.
Ms Bain also dismissed Mr Jack’s argument that people having different genders in different parts of the UK would cause major problems, including in the systems used to administer tax, state pensions and benefits.
The Gender Recognition Reform Bill would allow Scots to change their legal gender by simply signing a statutory declaration, dropping the requirement for a formal medical diagnosis of gender dysphoria.
It would also drastically lower the time period in which someone must live in their “acquired gender” from two years to as little as six months, and allow 16 and 17-year-olds to obtain gender recognition certificates for the first time.
There was a huge public backlash against the reforms after transgender predator Isla Bryson was initially sent to a women’s prison after being convicted of two rapes.
But Humza Yousaf, Nicola Sturgeon’s successor as First Minister and SNP leader, pressed ahead with a petition for a judicial review of the veto. The case, before Lady Haldane, is scheduled to last up to four days.
The Lord Advocate argued Mr Jack’s reasons for his intervention were not “sufficiently cogent to justify exercising an executive veto over a bill passed by a democratically elected legislature.”
“What I’m emphasising is the Secretary of State’s concerns are almost entirely unsupported by evidence and that is especially so in relation to concerns about safeguarding and fraudulent or malign applications,” she said.
“These concerns are inconsistent with experience in jurisdictions which have introduced similar provisions as those contained in the Bill.”
She argued transgender people form a very small proportion of the population of Scotland, and in the UK overall as well, and said the impact on single sex spaces would be “very modest”.
But David Johnston KC, acting for the UK Government, said there was “nothing sinister” about the power as it had been deliberately included in the Scotland Act.
In brief opening remarks responding to the Lord Advocate, he argued the correct test in a judicial review was whether issuing the veto was within the “range of reasonable responses open to” Mr Jack.
The case continues.