A wide shot of MSPs debating the Gender Recognition Reform Scotland bill.

What is a Section 35, and how does it affect Scotland’s gender recognition law

The Scottish Government’s Gender Recognition Reform (Scotland) Bill has been blocked by the UK Government, using a special “veto” power called a Section 35 order for the first time.

The Scottish law, which was intended to make it easier for trans people to change their legal gender, was passed by the Scottish Parliament in December 2022. However, it was stopped from becoming law through the use of a Section 35 order brought by the UK Government on January 17. 

Ferret Fact Service explains the issues. 

What is a Section 35, and how does it affect Scotland's gender recognition law 3

What is the Gender Recognition Reform (Scotland) Bill?

The Gender Recognition Reform (Scotland) Bill would make it easier for people in Scotland to legally change their gender, through acquiring a gender recognition certificate (GRC). 

Currently, the legislation covering this is set out in the UK-wide Gender Recognition Act 2004. The GRR bill made a number of changes to this for people living in Scotland. 

Key parts of the new law in Scotland would remove the requirement for a GRC applicant to have a medical diagnosis of gender dysphoria, and therefore remove the need for medical evidence to be provided. 

It also reduces the minimum age for an application from 18 to 16 years of age, and reduces the length of time a person must have lived in their acquired gender before making an application. A “reflection period” would be put in place for applicants, who could confirm at its end whether they wanted to continue. 

What is a Section 35 order?

Section 35 of the Scotland Act 1998 allows the UK Government, through the secretary of state for Scotland, to intervene when a law is passed through the Scottish Parliament but has yet to receive royal assent and become law. 

This power can be used in specific circumstances:

  • If the UK Government believes that the law “would be incompatible with any international obligations” or compromise “the interests of defence or national security”. 
  • When amendments are made to existing laws which the UK Government believes will have a negative impact on the operation of reserved UK-wide laws. 

Section 35 allows the secretary of state for Scotland to use an order in these circumstances to stop the Scottish Parliament from presenting the bill for royal assent. 

Royal assent is the formal process where a bill becomes law after it is approved by the reigning monarch. 

It is the Section 35 order that Alister Jack, the Scottish secretary, is using to block the GRR bill. 

Why does Section 35 exist?

As the framework of Scottish devolution was developed, the UK Government wanted a “safeguard” to intervene when it felt laws made by the devolved government could have a serious impact on reserved matters, even if it was technically a devolved area of legislation. 

Donald Dewar — then-secretary of state for Scotland, and later first minister of Scotland who introduced the bill — defended the clause, saying that: “We had to consider… if there was some effect on a reserved matter, it would not be competent for the Scottish Parliament to continue, or whether we should find some way of building in a safeguard, so that a knock-on effect was not an abuse of process or something that would cause problems in a reserved area.” 

It was criticised by Michael Ancram MP, who called it the “governor-general clause, or the veto clause” and predicted it could lead to confrontation between the Scottish and UK governments. 

There are similar powers for secretaries of state in Wales and Northern Ireland. Neither have been used. 

According to a memorandum of understanding in 2012, the UK Government sees the use of legislation like Section 35 as “a matter of last resort”.

This would be the first time a Section 35 order has been used since Scottish devolution in 1999. It cannot be overturned by the Scottish Parliament. 

Why is the UK Government using it?

The government says the Scottish law will conflict with existing UK-wide equalities legislation, notably the Equality Act 2010

In a statement to the House of Commons, Alister Jack told MPs that he believed the GRR would have a serious adverse impact” on the operation of existing legislation. He listed potential impacts on “single sex clubs, associations and schools, and protections such as equal pay”.

The UK Government has published a “statement of reasons” to explain why the Section 35 order was used. 

In it, the government outlines three “overall areas of concern”: 

  • What it sees as the negative impact of having two different regimes for issuing GRCs in Scotland and the rest of the UK.
  • The alleged impact that the GRR law would have on safety, due to “significantly increased potential for fraudulent applications to be successful”.
  • The potential impacts on the operation of the Equality Act 2010 of the expansion of the number of people able to obtain a GRC.

What can the Scottish Government do now?

The Scottish Government could now have to amend and reintroduce the GRR bill, after consulting with the UK Government on which areas it feels are creating adverse impacts on reserved laws. 

Or it could challenge the Section 35 order in a judicial review. 

To do this, the Scottish Government may argue that Alister Jack lacked reasonable grounds for invoking the order. A court would then rule whether the Section 35 order was made lawfully or unlawfully. 

The first minister, Nicola Sturgeon, has already indicated that the Scottish Government intends to challenge the Section 35 order in court. 

What does this mean for devolution?

Sturgeon called the move an “outrage” and said in a press conference on Monday:: “If the UK Government is able to normalise action to block legislation, democratically passed by the Scottish Parliament in our areas of competence on this issue, that will embolden them to do it on other issues and we will be on a very, very slippery slope indeed.”

Alister Jack, announcing his plan to block the legislation, said: “The section 35 power provides a sensible measure to ensure that devolved legislation does not have adverse impacts on reserved matters, including on equalities legislation such as the Equality Act 2010.

“This is not about preventing the Scottish Parliament from legislating on devolved matters but about ensuring that we do not have legal frameworks in one part of the UK which have adverse effects on reserved matters.”

Ferret Fact Service (FFS) is a non-partisan fact checker, and a signatory to the International Fact-Checking Network fact-checkers’ code of principles. All the sources used in our checks are publicly available and the FFS fact-checking methodology can be viewed here. Want to suggest a fact check? Go to community.theferret.scot, email us at factcheck@theferret.scot or join our Facebook group.

Photo credit: Andrew Cowan/Scottish Parliament

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