Scottish Labour faces 'nightmare scenario' over gender law court fight

The UK Government vetoed Holyrood’s Gender Recognition Reform Bill (GRR) in January, a decision Humza Yousaf’s SNP-Green Government challenged.

However the first hearing is not until September, and if the case goes all the way to the UK Supreme Court it could be a new Labour Government that inherits it.

That raises the prospect of Labour ministers and MPs trying to veto a Bill endorsed by Labour MSPs.

One Labour MSP said there was a “nightmare scenario” in which Labour at Westminster and Labour at Holyrood backed different outcomes in court, calling it “terribly messy”. 

Another senior party source said Scottish Labour would have to shift its position.

READ MORE: Humza Yousaf faces byelection 'thumping' as SNP support evaporates

Labour MSPs are understood to have discussed the scenario but taken no firm position.

UK Labour last week ditched its previous plan to allow people to change their legal gender through self-declaration, also known as self-ID.

The party said it wanted the process for obtaining a gender recognition certificate (GRC) to retain a medical component to help guard against possible abuse of the system.

Scottish Labour rejected the change, saying it supported “de-medicalisation” of the process. 

Speaking for UK Labour, Starmer responded bluntly: “We don’t agree. We don’t think that self-identification is the right way forward.”

Current UK-wide law requires a transgender person to obtain a medical diagnosis of gender dysphoria before they can receive a GRC in a process lasting at least two years.

Last year, Holyrood passed the GRR Bill in an attempt to simplify and speed up the system.

The legislation replaced a medical diagnosis with self-ID, lowered the age threshold for a GRC from 18 to 16, and shortened the process to six months.

Advocates said it was a long overdue change to insensitive bureaucracy, while critics warned it could undermine women’s rights and jeopardise single sex spaces.

The Bill was passed after days of marathon sittings in December by 86 votes to 39, with support from all parties, with only the Conservatives predominantly opposed.

But the following month, Scottish Secretary Alister Jack vetoed the Bill by making the first  order under Section 35 of the 1998 Scotland Act, which prevented it from obtaining royal assent and thus becoming law.

He said the Bill would otherwise cut across and undermine UK-wide equality law.

During the SNP leadership race, Mr Yousaf was the only candidate to say he would challenge the Section 35 order as a matter of principle.

In April, the Scottish Government launched a judicial review action, claiming Mr Jack’s decision-making had been “irrational”, “inadequate”, “irrelevant” and ill-founded in law. 

The case has been set down for a three-day substantive hearing before a single judge at Scotland’s highest court, the Court of Session, on September 19.

The losing side would almost certainly appeal to a panel of Scottish judges, and their decision could in turn be appealed to the Supreme Court for a final ruling.

Given the pace of the courts the case could well come before the Supreme Court after the election expected next year, when polls suggest Labour would be in government. 

The new administration would face a choice on whether to keep the Section 35 veto - putting it at odds with Scottish Labour - or drop it and let the GRR Bill become law.

As Starmer was content with the veto from the outset and always considered the GRR Bill to be flawed, the likelihood would be for the court case to rumble on.

Neither the Tories or Mr Yousaf is likely to spare him the decision by expediting the case, as both would like to see the issue blow up under a new Labour administration. 

One Labour MSP said: “The issue of how Labour in the UK would deal with a Section 35 order is a more than reasonable question. I think Starmer would have grounds to maintain the Section 35 order if he thought there was a cross-border effect. That probably is the crunch point for the party - what would happen in regard to a Section 35?

“I think Humza will keep it bubbling along and see what happens after the election.”

The source said the scenario was a “nightmare” but not necessarily apocalyptic.

“This is the party taking a different position in Scotland than it takes in the UK on this issue. 

“Does it create tension? Of course.

“Will it become messy or contradictory? I don't think it'll probably be more contradictory than it is at the moment.”

Another senior Labour source said the situation would be a problem because Starmer was unlikely to drop the Section 35 veto as it was legally the right decision.

That meant Scottish Labour would have to shift its position to align with UK Labour, which was now more in tune with the public mood, the person said, adding: “There’s still time.” 

Labour is not the only party to have become divided and tangled over gender reforms. 

At the final vote on the GRR Bill, two of Labour’s 22 MSPs failed to support it and two more voted against, as did nine of the SNP’s 64. Tory MSPs also took very different positions.

What is new is the focus on Labour’s problems as the party moves closer to power.

Labour MSP Monica Lennon previously called the veto a “cynical and dangerous power move by an out-of-control UK Government”.

If Starmer stands by it, is he too engaged in a cynical and dangerous power move?

UK Labour can probably take it in their stride - they would have the consolation of power.

But Scottish Labour’s discomfort would be acute if Starmer blocked a Bill most of its MSPs had backed after years of debate and some genuine soul-searching at Holyrood.

Anas Sarwar, who backed the Bill, would also be taunted all the way to the 2026 election.

The SNP would crow about Scottish Labour being a puny “branch office”.

If Labour won power at Holyrood it would bow to Labour at Westminster rather than stand up for the nation’s interest, the SNP would say. Scotland would get a poodle Parliament.

That was the criticism the SNP - with some justification - levelled at the Labour-led Scottish Executive in the early years of devolution, and it could well work for them again.

Marion Calder of For Women Scotland, which opposes self-ID, said if a Labour government tried to avoid vetoing the Holyrood Bill by “tinkering” with it, it would backfire on the party as only radical action would suffice. 

“We would hope to see self-ID gone in its entirety. I don't want to see a Bill coming back with minor adjustments on it. That's not enough for women in Scotland.

“If they don’t listen to women now they will inherit a big mess.”

READ MORE: SNP challenge Labour candidate charity boss over two-child limit

SNP Women and Equalities spokesperson Kirsten Oswald MP said: “It's never been more clear that Scottish Labour have absolutely no influence over Keir Starmer, and can only watch on as he completely undermines their credibility - reminding everyone of their branch office status.

"Whether it's the two-child benefit cap, the bedroom tax, free school meals, nationalisation or Scotland's future, it's clear the Labour Party cannot be trusted to deliver on their promises.”

Scottish Labour Social Justice spokesperson Paul O’Kane MSP said: “Concerns about the effects of Gender Reform legislation should have been dealt with through statutory EHRC guidance instead of a lengthy and expensive court case. 

“This legislation has descended into chaos because both governments are incapable of working together, leaving us no further forward. 

“Across the UK Labour is united on the need to reform the gender recognition process, and the devolution settlement rightly allows for different approaches within that and within the provisions of Labour’s world leading Equality Act.”