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Comment on Lady Haldane’s Section 35 Ruling

TransActual is disappointed by Friday’s ruling by Lady Haldane on whether the UK Government had the right to invoke section 35 of the Scotland Act 1998.

The UK Government took this unprecedented step in January 2023 to prevent the proposed Gender Recognition Reform (Scotland) Bill from gaining Royal Assent. This Bill, voted for by more than two thirds of MSPs, would have introduced a process of self-declaration for gaining legal gender recognition. A number of countries have introduced similar processes without problems, Ireland being one of the first such countries in 2015. Self-declaration is recognised by the United Nations as giving due respect to trans people.

Lady Haldane’s ruling appeared to hinge on the advice that the Secretary of State received, as it stated that the Secretary of State was right to act on the advice he received. We think it likely that advice was only sought from those hostile to the principle of self-declaration of gender.

We were also disappointed to note that Lady Haldane understood the submissions from Stonewall and the Equality Network to counter each other on the importance of gaining legal gender recognition. Our view is that Stonewall correctly noted that gender recognition is very important for certain life events, while the Equality Network correctly noted that gaining a new birth certificate has little impact on day-to-day life.

The UK has become increasingly hostile to trans people over the past few years. The statements by the Minister for Women and Inequalities, Kemi Badenoch, earlier this week have only added to the fears of trans and non-binary people. The opportunity to demonstrate that the fears raised about self-declaration are groundless has been removed – at least for now.

Once again we urge this government to look at the evidence from around the world, to engage meaningfully with LGBTQ+ groups – not just those which share its ideology – and to do something positive for trans and non-binary people like invest properly in gender affirming healthcare.