Case likely to end up before Supreme Courtpublished at 12:00 British Summer Time 19 September 2023

12:00 BST 19 September 2023

James Cook
Scotland Editor, BBC News

For nearly 500 years the Court of Session has considered the thorniest and weightiest matters of the moment.

There can hardly be a more fundamental issue than what it means to be a man or a woman.

Judge Lady Haldane, in civilian attire rather than robe and wig as this is a civil not a criminal case, is familiar with the topic, having issued a hotly-debated ruling about the definition of sex last year.

But the Lord Advocate Dorothy Bain KC, representing the Scottish government, says these proceedings are different.

The court, she says, is not being asked to rule on whether changes to gender law approved by Holyrood “could or should have been different or better.”

Rather, argues Ms Bain, the issue is whether or not the Scottish Secretary Alister Jack overstepped his constitutional authority in deciding to block the bill.

She argues that he did. The UK government obviously disagrees, as we will hear from its counsel, David Johnston KC, in the coming days.

But whatever happens here, in the airy, wood-panelled courtroom number one of Edinburgh’s Parliament House, is unlikely to be the end of the matter.

An appeal to a panel of three judges in what is known as the Inner House of the Court of Session may well follow.

And, given that the case hinges on the unprecedented use of a provision of the Scotland Act which established devolution, it would be odd indeed if it did not end up before the UK Supreme Court in London.

Image source, PA Media

This is the first time since the advent of devolution that the UK government has used a Section 35 Order.

It was issued on the basis that UK Ministers think the gender reform bill will have a negative impact on British law.

In this case, the law is the 2010 Equality Act, which MSPs are not allowed to change.

The 2010 Act applies in Scotland, England and Wales, setting out different "protected characteristics" including those of sex and gender reassignment, and underpins the rights and protections afforded to these groups.

UK Ministers have successfully challenged Holyrood legislation before - but on the basis that MSPs have exceeded their powers.

This case will be won and lost on the points of lawpublished at 11:04 British Summer Time 19 September 2023

11:04 BST 19 September 2023

Philip Sim
BBC Scotland political correspondent

Proceedings are being presided over by Judge Lady Haldane.

She seems very keen to keep the case strictly focused on the lawfulness of the Section 35 order.

The Lord Advocate Dorothy Bain said it was “striking that there was not a whisper” of concern from the UK government during consultations or earlier in the passage of the bill.

But the judge was swift in pointing out that there is nothing in Section 35 that would require such consultation.

Ms Bain says this is important context about the devolution settlement.

But it’s a reminder that this case will be won and lost solely on the points of law - something which might otherwise make an excellent political argument may cut no ice at all in court.

A lack of precedentpublished at 10:59 British Summer Time 19 September 2023

10:59 BST 19 September 2023

Philip Sim
BBC Scotland political correspondent

Image source, PA Media

This case will hinge on the proper interpretation of Section 35 of the Scotland Act, which sets out the conditions under which the Scottish Secretary can veto a Holyrood bill.

The Scottish government is arguing that this power is narrowly defined, and should only be used in very specific circumstances.

Dorothy Bain KC, the Scottish government's Lord Advocate, says it was never intended to be used to settle a policy dispute - although the UK government insist their concerns are strictly legal ones.

What makes this case difficult is the complete lack of precedent.

There has never been a case testing the interpretation of S35 - so there is no case law or prior judgement to look to, in terms of understanding what an “adverse impact” on reserved law might be, or what could constitute “reasonable grounds”.

The lawyers and indeed the judge are in uncharted territory here - which also means this case will SET precedents, and could even have a impact on the balance of powers between Holyrood and Westminster.

Image source, Getty Images

The Scottish government is keen to say only a small number of people would be directly affected by any reforms.

And how do they back that up?

Well, the NHS estimates that transgender people make up about 0.5% of the population.

Ireland made similar changes in 2015 and had granted an average of 115 applications per year up to 2020., external

Proceedings begin at the Court of Sessionpublished at 10:39 British Summer Time 19 September 2023

10:39 BST 19 September 2023

Philip Sim
BBC Scotland political correspondent

Proceedings are under way at the Court of Session for the first day of legal debate between the Scottish and UK governments.

We'll hear from the UK government's KC tomorrow.

The Scottish government's Lord Advocate Dorothy Bain this morning begins by underlining that this case is not about the merits of the gender reform bill.

Rather it is about UK ministers using their powers under Section 35 of the Scotland Act to block Holyrood legislation, she says.

Ms Bain submits that Section 35 should not give the UK government the right to "veto practically any act of the Scottish parliament" if they disagree on policy grounds.

The thrust of the Scottish government argument is basically that S35 is cautiously framed and should only be used in very particular circumstances - and that the UK government has not provided strong enough reasons to trigger it which would constitute "reasonable grounds" to take such an unprecedented step.

The UK government disagrees that the Section 35 Order was issued on policy grounds.

One of the Scottish government's most contentious proposals is to lower the minimum age that someone can apply from 18 to 16 - although 16 and 17-year-olds would need to have lived as their acquired gender for six months rather than three.

The bottom line is that the Scottish government wants to make it easier for people to change their legally-recognised gender.

It argues that the current process is too difficult and invasive, and causes distress to an already marginalised and vulnerable minority group.

Its plans would see applications handled by the Registrar General for Scotland, rather than the UK panel.

No diagnosis or medical reports would be required, and the period in which applicants need to have lived in their acquired gender would be cut to three months.

Image source, Getty Images

People currently have to apply, external to a UK gender recognition panel.

They will be asked to present a diagnosis of gender dysphoria.

This is defined by the NHS, external as being caused by a "mismatch" between their biological sex (whether they were born physically male or female) and their gender identity (the way in which they see and describe themselves).

Applicants need to provide two medical reports, one from a specialist detailing their diagnosis and another listing any treatment or surgery they may have had to change their sexual characteristics.

They must also prove they have lived full-time in their acquired gender for at least two years - for example showing they have used a different name in official documents, or changed their gender on their driving licence or passport - and swear an oath that they intend to continue for the rest of their lives.

Image source, PA Media

MSPs voted in December last year to pass the bill by 86 votes to 39.

So far, so straightforward? Not quite.

Scottish Secretary Alister Jack used UK government powers to veto the bill, saying it could interfere with equalities law across the whole country.

Scottish ministers then lodged a legal challenge at the Court of Session in a bid to overturn that decision and to have the reforms come in to law.

So now there will be two days of legal argument to decide who is right and who is wrong.

Good morning and welcome to our live coverage of the latest developments with the Scottish government's controversial Gender Recognition (Reform) Bill.

We will bring you rolling updates and analysis as the Scottish and UK governments face off at the Court of Session in Edinburgh.

The bill would make to make it easier for people in Scotland to change their legally-recognised gender.

But it has proved hugely controversial - leading to today's legal challenge.

So before court proceedings get under way, let's have a quick recap on what the row is all about.