Nicola Sturgeon urged not to press on with legal action on gender bill

Ms Sturgeon has argued the bill does not conflict with UK equalities legislation and vowed to mount a legal challenge over Mr Jack's veto triggered by the unprecedented use of the Section 35 of the Scotland Act 1998.

She insisted on Monday her government would press ahead with the action despite the furore over double rapist Isla Bryson, formerly Adam Graham, sent to Scotland's only women's prison.

Bryson was transferred to the male facility HMP Edinburgh after a public and political outcry and following a review of the case it was announced on Thursday that all transgender inmates will initially be placed in prisons according to their gender at birth.

"As an alternative to legal action the Scottish Government should try to reach an accommodation with the UK Government which would allow it to reintroduce an amended bill which would achieve the bulk of the objectives of humanising the process of gender recognition while at the same time making sure the amended bill wasn't open to challenge by the UK Government", said Mr Neil, (pictured below), who served as social justice secretary in Ms Sturgeon's government and was health secretary under her predecessor Alex Salmond.

"I think this would be a quicker process than pursuing a legal challenge the chances of which of succeeding look to be pretty slim. I think a bit of common sense all round, try and resolve the issue quickly and amicably so that [the Scottish Government] could get the legislation through quicker albeit in an amended format."

He added: "I think they have got to do more to assure people that women rights are not going to be undermined. I think it's important that we try and take as many people with us as possible when you are making reforms like this because clearly the broader consensus you can build behind the reforms the better for everybody....I think it would be more statesmanlike for the two governments to try and reach agreement. Based on what legal experts are saying the chances of the Scottish Government winning a legal challenge are very slim."

Mr Neil's intervention comes days after the First Minister insisted she would be pressing ahead with legal action against the UK Government over its use of the Section 35 order to stop the Gender Recognition Reform (GRR) Bill from getting royal assent to become law.

READ MORE: FM to challenge UK Government over gender bill despite Isla Bryson row

However, the prospect of a protracted court challenge which would keep the controversy over transgender reforms in the headlines for many months to come in the lead up to the next general election, expected by the end of 2024, has made some SNP politicians anxious.

A poll published last week found support for the SNP, for Ms Sturgeon and for independence had fallen sharply amid the handling of a row over a transgender Isla Bryson, initially sent to a segregated part of Scotland's only women's prison Cornton Vale in Stirling before being transferred to the male facility HMP Edinburgh after a public outcry.

The YouGov survey for the Sunday Times of 1,088 Scottish voters found support for the party dropped from 50% to 44% in the Holyrood constituency vote and from 40% to 36% in the regional list, when compared to the results of the same poll in December. Support for independence also dropped substantially, from 53% to 47% among decided voters.

SNP support at Westminster dropped marginally from 43% to 42%, while the First Minister’s approval rating also suffered, dropping from a net of 7% in October to -4%. However, while support fell for the SNP, the polling put it still well ahead of its main rivals the Conservatives and Labour.

READ MORE: Call for Italian style jail for trans prisoners as FM faces new storm

The fieldwork for the survey was being done at the same time as a row erupted over the imprisonment of Bryson, a double rapist.

Separate research published last week by Ipsos found half of Scots thought the UK Government was right to block Ms Sturgeon’s gender reforms.

It also found that about a third of both SNP and Yes voters believe the Conservative administration at Westminster was right to overturn the Holyrood bill which would allow people to self- identify in their new gender and lower the age at which people can switch from 18 to 16.

Previously polling published at the end of last year showed around two thirds of Scots were opposed to the main aspect of the legislation.

"Nobody's going around whooping and saying 'Nicola is doing very well at the moment,'" said one senior SNP figure.

"It's a political mess."

Asked about the potential legal challenge the Scottish Government may mount, the insider added: "People don't think keeping this issue alive is wise. The record of the Scottish Government going to court is not great at the moment and this might be a long drawn out loss.

"I think we've got into this problem because of a lack of being able to discuss things. Logical, sensible people with concerns don't feel they can speak up."

The First Minister gave a press conference on Monday when she faced questions over the Bryson case and wider issues relating to the matter and whether it was affecting her standing.

She was also asked about whether she would press on with challenging the Section 35 order.

Ms Sturgeon said her position on the matter had not changed and said it was important to have “clarity” on the circumstances in which it can be used.

"My position in terms of challenging the use of Section 35 has not changed," she told reporters in Edinburgh.

"Firstly in terms of the particular and specific subject matter. But secondly because I think there is a need to have greater clarity around the circumstances on which it is appropriate for the UK Government to use a Section 35 order so my position on that hasn't changed."

She added: "In terms of the bill parliament as a whole by a two thirds majority with MSPs of all parties within that two thirds majority passed that bill before Christmas. I think it was right to do so. In doing so it followed on from many other countries who have legislation of that nature already in place."

Ms Sturgeon was also asked about a lack of an independent process under the GRRB to validate whether a person was transgender or pretending to be in order to gain access to women in vulnerable circumstances.

She said: "The legislation and the specific amendments that were put into the legislation, the ability effectively to pause a process for a gender recognition certificate on the basis of police having a sexual offence order actually are a strengthening of the law around that if the law comes into force."

During the passage of the GRR Bill critics raised concerns whether there were sufficient safeguards in the legislation to stop violent men using the process of gender self-declaration to access women only spaces such as prisons, hospital wards and changing rooms.

An amendment tabled by Tory MSP Russell Findlay, which would have placed barriers in the way of convicted sex offenders being able to apply for a gender recognition certificate (GRC) was defeated by 59 votes to 64 with two abstentions.

A separate amendment by SNP MSP Michelle Thomson, who has spoken publicly of being sexually assaulted as a teenager, which would have prevented someone charged with sexual crimes from applying for a GRC until after the trial, was also narrowly defeated.

Meanwhile, the two governments appear at loggerheads over the legislation.

Mr Jack has defended blocking of the bill saying on Thursday that the Scottish Government should “fix it, drop it or take us to court”.

Scottish social justice secretary Shona Robison has claimed Mr Jack  has stonewalled requests for engagement on changes to the bill that UK ministers would deem acceptable to lift the veto.

A Scottish Government spokesman said: “We consider the use of a Section 35 order to veto this legislation an unprecedented attack on the democratically elected Scottish Parliament. We are examining the reasons given by the UK Government for their order and the Cabinet Secretary has committed to setting out next steps to Parliament in due course.”