ALISTER Jack, the Secretary of State for Scotland, has a difficult decision to make: should he use his powers under the Scotland Act to direct the Presiding Officer of the Scottish Parliament not to submit the Gender Recognition Reform Bill for Royal Assent, thereby preventing it becoming law?

The Bill was passed by the Scottish Parliament last month, after a rancorous public debate. It raises intense passions. Trans activists celebrate it as a moment of liberation, unlocking people from a cumbersome and medicalised process of gender recognition and freeing them into a new world in which each of us has the gender we choose for ourselves. Others bitterly resist, dismayed at the ways the Bill permits men to self-identify as women, invading the safe spaces our society reserves for women who have been abused by men in the past.

I have never taken sides in this debate, and I am not going to do so now. My only forays into it have been to urge that we do not seek to cancel or silence people just because they take a different view from us on sex and gender. If both sides had expressed themselves – and listened to the other side – with openness, sensitivity, and respect, the matter would never have become so toxic.

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Be that as it may, what does any of this have to do with Mr Jack? For the answer, we need to turn to the Scotland Act. Section 35 of that Act provides the UK Government with certain safeguards. If Holyrood were to pass legislation incompatible with the UK’s international treaty obligations, the Secretary of State could instruct the Presiding Officer not to allow that legislation to become law. Likewise if Holyrood passed legislation contrary to the interests of the UK’s defence or national security.

Thus far in the history of devolution, these powers have not needed to be exercised. Section 35 goes on to say, however, that the Secretary of State may also block Holyrood legislation where it (1) modifies the law as it applies to reserved matters and (2) has an adverse effect on the operation of the law as it applies to reserved matters.

This is the power relevant to the Gender Recognition Reform Bill and it arises because, although gender recognition is devolved, the UK’s equality law is reserved to Westminster. We have the same rules and principles with regard to equality and non-discrimination throughout the United Kingdom.

The question, therefore, is twofold. Does the Gender Recognition Reform Bill “modify” the law “as it applies” to reserved matters? And, if so, does it have an “adverse effect on the operation” of that law? When the Bill was first introduced, there was considerable legal uncertainty about this. The matter is complex, because the way the law deals with sex and gender is not consistent, and has changed over the years.

When the UK’s Equality Act was passed in 2010 “sex” and what was then called “gender reassignment” were separate categories. It was unlawful to discriminate against people on either ground, but they were nonetheless understood to be distinct categories.

More recent law, however, refers to gender recognition (rather than reassignment), just as it refers to “transgender” rather than to the Equality Act’s term, “transsexual”. Moreover, the law now provides that people with a gender recognition certificate (“GRC”) have the “sex” of their acquired gender.

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The law is a muddle, but it was clarified by a breakthrough judgement of the Court of Session delivered on December 13. The court ruled that the term “woman” in the UK’s Equality Act means and includes both biological women and trans women in possession of a GRC. Thus, “sex” and “gender reassignment” are no longer the separate categories they were once thought to be: rather, (biological) men who transition to become women have the same protected characteristic (“sex”) which biological women have.

Now, for the purposes of the UK’s tangled equality law this may be a helpful and long-overdue clarification. But, for the purposes of the proponents of the Gender Recognition Reform Bill it is decidedly unhelpful, because it surely ends any doubt, which formerly shrouded the matter, that this Bill – whatever its policy merits – clearly does modify the law as it applies to reserved matters.

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In short, any man self-identifying as a woman will be classified as a woman for the purposes of the protected characteristic of sex under the Equality Act. If that is not a modification of the law as it applies to reserved matters, I do not know what would be.

The Gender Recognition Reform Bill was still under consideration in Holyrood when the key Court of Session judgement was handed down on December 13. Indeed, at that date, Stage 3 of the Bill (its final amending stage) lay two weeks in the future.

The smart thing for the Scottish ministers to have done would have been to pause the Bill at that point and to reconsider it, in consultation with the UK Government, to try to figure out how its policy ambitions could be realised without having the “adverse effect on the operation of the law as it applies to reserved matters” which section 35 of the Scotland Act prohibits.

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But the Scottish ministers did not do the smart thing: they ploughed ahead. Ideology won out, where it should have yielded to a more sober and pragmatic judgment.

Section 35 gives the Secretary of State a 28-day period in which to decide whether he should exercise his power to block a Bill passed by Holyrood. Whatever he decides, we shall know very soon. And, whatever he decides, the matter is bound to end up in court.

Yet again, the Supreme Court is likely to have to rule on a policy matter which really should have been resolved elsewhere. The Scottish ministers may live to regret their foolish decision to act in haste.

Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow School of Law. He was a Conservative MSP for the Glasgow region from 2016 to 2021.