A FORMER Supreme Court justice has suggested Humza Yousaf is heading for a costly courtroom defeat against the UK Government over gender reforms, saying his case is “weak”.

Lord Jonathan Sumption said it would be “very difficult” for the Scottish Government to win its legal challenge over Holyrood’s controversial Gender Recognition Reform (GRR) Bill. 

Former SNP minister and leadership contender Ash Regan also predicted Mr Yousaf would suffer a “humiliating” loss while wasting “a vast amount of taxpayers’ money”.

The interventions come after Mr Yousaf’s government confirmed it would take legal action to save the Bill, and outlined its arguments for doing so. 

MSPs passed the legislation before Christmas, but it was prevented from becoming law by the UK Government, who said it would cut across and undermine UK-wide equality law.

The Bill is intended to simplify the process for changing gender in the eyes of the law, but critics fear it will undermine women’s rights and jeopardise single-sex spaces.

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Scottish Secretary Alister Jack effectively vetoed it by using Section 35 of the Scotland Act, a mechanism never before used under devolution.

Mr Yousaf previously said challenging the veto was a matter of principle, and it was outrageous that London could block a law made by Holyrood.

The Scottish Government is now seeking to have the Section 35 order set aside in a judicial review at the Court of Session, where it will argue Mr Jack’s decision was unreasonable.

In a preliminary statement yesterday, Social Justice Secretary Shirley-Anne Somerville said the veto was imposed without previous notification, without specific requests for changes to the Bill, without “sufficient justification”, and in breach of previous cross-border agreements. 

Given the use of a Section 35 veto is unprecedented, she also said it was important to have clarity on the interpretation and scope of the power and its impact on devolution.

“Those matters and the use of the power on this occasion should be legally tested in the courts,” she said. 

The judicial review will be heard initially in the Outer House of the Court of Session by a single judge, who will be asked to decide whether Mr Jack’s decision-making was flawed on the basis of illegality, procedural unfairness, or irrationality.

The losing side can then appeal to a panel of judges in the Inner House, and from there to the UK Supreme Court.

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However Lord Sumption told BBC Radio Scotland that it appeared the Holyrood Bill strayed into areas reserved to Westminster, and so using a Section 35 veto was reasonable.  

He said of the Scottish Government: “I think their case is very difficult.”

Referring to Ms Somerville’s call for “clarity on the interpretation and scope of the Section 35 power and its impact on devolution”, he went on: “What this means for her, I suspect, is that it is important to be able to point to some way in which Westminster is cramping Scotland’s style. That is of course something the Scottish National Party has always been keen to do.

“Section 35 empowers the UK Government to stop a Scottish Bill becoming law if it modifies the law relating to a matter reserved to Westminster in a way that adversely affects how the law works.

“One of those matters is equal opportunities, and what the UK Government says is the Scottish Bill modifies the law relating to equal opportunities in a way that adversely affects how it works.

“So if you think about it, the result will be that some UK citizens, if this Bill comes into force, will have a different legal gender in different parts of the UK depending on where they happen to be.

“That poses really quite serious legal and practical problems for employers and for public authorities operating equalities legislation on a UK-wide basis.

“For example, they will have to discriminate between trans people in Scotland and the rest of the UK on matters like equal pay, gender discrimination, benefits, pensions, all of these things which are subject to UK-wide statutory regimes.

“So on the face of it the Scottish Bill does modify the law in a way that does adversely affect its operation.”

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Lord Sumption said the Scottish Government would “have to argue that gender recognition is nothing to do with equal opportunities”, but instead about “defining a person’s legal status”.

But he said the impact of the Bill could “introduce serious problems”,

He noted Lord Hope, a former deputy president of the Supreme Court, had “described the Scottish Government’s position as ‘hopeless and a waste of public money'”.

Lord Sumption said: “I wouldn’t go that far. I think that the Scottish Government’s legal position is arguable, but I think it is weak.

“Their basic problem is that gender reassignment is a protected characteristic and the Bill alters the way the law works as applied to those.

“The whole scheme of the Scotland Act is that matters that affect only Scotland are devolved to Scotland, matters that affect the whole of the UK remain in the jurisdiction of Westminster. 

"That is the way the Scotland Act works. The UK Government is arguing that this is something that affects the way that UK-wide legislation works.”

Ms Regan, who resigned as a minister last year in opposition to the GRR Bill, said the legal challenge was doomed and predicted it would backfire.

She tweeted: “The decision to challenge the Section 35 will result in a humiliating defeat.

“The GRR is deeply unpopular amongst Scottish voters and court action will cost a vast amount of taxpayers money.”

With many SNP members also opposed to the GRR, she linked the issue to the party’s internal problems, suggesting it was part of a wider malaise and called for reform.

“Losing 30k party members over this policy means it’s time for a re-think,” she said.