Scotland's Gender Recognition Reform Bill and the Section 35 order

What did the Scottish bill propose, why did the UK government block it, and what happened in court?

The Gender Recognition Reform (Scotland) Bill was presented as a reform of the Gender Recognition Act 2004 process in Scotland. A Gender Recognition Certificate, or GRC, is a legal document issued under the 2004 Act. Before the proposed Scottish changes, an applicant normally had to be at least 18, provide medical reports including a diagnosis of gender dysphoria, show that they had lived in the acquired gender for two years, and apply to a UK Gender Recognition Panel.

Background

The Gender Recognition Reform (Scotland) Bill was presented as a reform of the Gender Recognition Act 2004 process in Scotland. A Gender Recognition Certificate, or GRC, is a legal document issued under the 2004 Act. Before the proposed Scottish changes, an applicant normally had to be at least 18, provide medical reports including a diagnosis of gender dysphoria, show that they had lived in the acquired gender for two years, and apply to a UK Gender Recognition Panel.

The Scottish Bill would have created a substantially different route for people born in Scotland or ordinarily resident there. It retained a statutory declaration that the applicant intended permanently to live in the acquired gender, but removed the diagnosis, medical-report and third-party-evidence requirements. The qualifying period would have been three months for adults and six months for 16- and 17-year-olds, followed by a three-month reflection period. Applications would have gone to the Registrar General for Scotland rather than a panel. Making a false declaration or application would have remained a criminal offence, punishable by up to two years’ imprisonment and an unlimited fine (Scottish Parliament, 2022; UK Government, 2023).

This was not legislation about clinical transition, puberty blockers, schools or NHS treatment. It was legislation about legal sex recognition. Nevertheless, it mattered beyond the administrative process because the Gender Recognition Act 2004 uses the language that, following issue of a full GRC, a person’s gender becomes the acquired gender “for all purposes”, subject to exceptions. The interaction between that provision and sex-based rights under the Equality Act 2010 was central to the dispute.

Gender recognition is devolved to Holyrood, but equal opportunities are reserved to Westminster. Section 35 of the Scotland Act 1998 permits the Secretary of State for Scotland to prevent a Scottish Bill receiving Royal Assent where it modifies law as it applies to reserved matters and the Secretary of State has reasonable grounds to believe that this would adversely affect the operation of that law. It is distinct from a challenge to whether a Bill is within Holyrood’s legislative competence under Section 33.

What the documents say

The Bill

The Scottish Parliament’s documents describe a statutory-declaration model intended to make legal recognition quicker and less medicalised. The Bill did not abolish the legal requirement to make a solemn declaration of permanent intention. It also contained restrictions related to sexual-harm and sexual-offence prevention orders, requiring Police Scotland to notify the Registrar General in specified circumstances (Scottish Parliament, 2022).

Its practical effect, however, would have been to make a full Scottish GRC available to a much wider group of people, including 16- and 17-year-olds and adults without a diagnosis of gender dysphoria or independently evidenced two-year history. It also proposed broad recognition in Scotland of overseas gender-recognition outcomes, unless recognition would be manifestly contrary to public policy.

The Section 35 order

The order, made by Alister Jack on 17 January 2023 and effective from 18 January, prohibited the Presiding Officer of the Scottish Parliament from submitting the Bill for Royal Assent. It identified fiscal policy, social security and equal opportunities as reserved areas potentially affected by the Bill (The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023).

The UK Government’s accompanying statement of reasons set out three broad concerns. First, it said two markedly different GRC regimes within the UK would create legal and operational uncertainty, including for UK-wide employers, clubs, public bodies, tax, benefit and pension systems. Secondly, it argued that removing medical and evidential safeguards created a greater risk of fraudulent or malign applications. Thirdly, it said a substantially enlarged pool of GRC holders would adversely affect how the Equality Act 2010 operated, including provisions concerning equal pay, public-sector equality duties, single-sex associations, services, sports and occupational requirements (UK Government, 2023).

The statement did not claim that a GRC itself gave unrestricted access to every single-sex service. The Equality Act contains exceptions that can permit exclusion of people with the protected characteristic of gender reassignment where this is a proportionate means of achieving a legitimate aim. The UK Government’s case was instead that widening and accelerating access to GRCs would intensify existing legal and practical difficulties.

The court case

The Scottish Ministers petitioned for judicial review in April 2023. They argued, among other things, that the Bill was within devolved competence, that the alleged adverse effects were speculative, and that the Section 35 power had been used because of a policy disagreement rather than because its statutory conditions were met. They maintained that cross-border consequences could have been addressed through a Section 104 order rather than a veto.

Lady Haldane rejected the challenge in Scottish Ministers v Advocate General for Scotland [2023] CSOH 89. She held that Section 35 was part of the constitutional settlement created by the Scotland Act, not an external intrusion upon it. The power was reviewable and not unfettered, but the court’s task was not to replace the Secretary of State’s predictive political and policy judgment with its own. On the evidence, she found no basis to infer an impermissible policy motive, and held that the statutory test had been met. She also concluded that Section 104 could not answer the adverse effects identified under Section 35 (Court of Session, 2023).

No appeal followed. The Scottish Government announced on 20 December 2023 that the Bill could not proceed to Royal Assent and that it would not appeal. There was therefore no Court of Appeal or UK Supreme Court ruling on the legality of this particular Section 35 order.

The positions

The Scottish Government and supporters of the Bill argued that the existing GRC process was intrusive, slow and unnecessarily medicalised. They said the reforms would give trans people a more dignified administrative route while retaining serious legal declarations and criminal penalties for dishonesty. They also argued that the Bill did not amend the Equality Act 2010 and did not remove its single-sex exceptions. From this perspective, Section 35 was an unprecedented and constitutionally troubling interference with a Bill passed by a majority of MSPs.

The UK Government’s position was that this was not a general power to veto any devolved policy it disliked. It relied on the specific Section 35 test: modifications to law as it applies to reserved matters plus reasonable grounds to believe there would be adverse effects. Its emphasis was on UK-wide equality law, cross-border administration, legal clarity and the consequences of issuing GRCs through a materially less demanding process (UK Government, 2023).

Gender-critical campaigners argued that sex-based rights depend on a stable, observable meaning of sex and that self-declaration would undermine safeguarding, data collection, equal pay analysis and female-only provision. Trans-rights campaigners argued that these concerns overstated the effect of GRC reform, wrongly treated trans people as a safeguarding risk, and ignored the Equality Act’s continuing exceptions.

In April 2025, the UK Supreme Court decided a separate case, For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16. It held that “sex”, “woman” and “man” in the Equality Act 2010 refer to biological sex. That case was not an appeal about the Section 35 order, but it resolved a major legal question which had framed the UK Government’s 2023 concerns (UK Supreme Court, 2025).

Interpretation

Beyond Gender’s reading is that the Section 35 order was justified not merely as a technical dispute over devolved machinery, but as a necessary response to a Bill that would have made legal sex certification available on self-declaration after a very short period, including to minors aged 16 and 17. The Bill proposed a profound change in the state’s treatment of sex without the evidential safeguards previously required for a document said to have legal effect “for all purposes”.

The subsequent Supreme Court ruling makes the underlying issue clearer. If sex in the Equality Act means biological sex, a scheme that greatly expands the availability of GRCs cannot straightforwardly redefine who counts as a woman for Equality Act sex-based provisions. That does not remove protections against discrimination for trans people, including the protected characteristic of gender reassignment. It does mean that public bodies, clinicians, employers and journalists should not present a GRC as a universal override of biological sex.

The constitutional lesson is also important. Holyrood may legislate in devolved fields, but the Scotland Act deliberately preserves mechanisms where devolved legislation has adverse consequences for reserved law. The Court of Session found that Section 35 has limits and is judicially reviewable; it did not find that Westminster has a free-standing political veto. In this case, however, the statutory threshold was held to have been met.

Open questions

The Bill remains blocked and has not received Royal Assent. The central practical question is whether any future Scottish proposal could be drafted to avoid the adverse effects identified in 2023 while remaining coherent with the Equality Act as interpreted by the Supreme Court in 2025.

There are also continuing questions about administrative practice. Public authorities need clear, lawful guidance on sex data, single-sex services, public appointments, prisons, hospital wards, sport and safeguarding. The law protects trans people from discrimination and harassment, but that protection must be applied alongside the Supreme Court’s clarification that the protected characteristic of sex is biological sex.

Finally, Section 35 remains an important precedent in the devolution settlement. The order was the first use of the power, but the Court of Session judgment confirms that it is a real statutory mechanism where the conditions Parliament set are satisfied. Future disputes will turn on evidence, drafting and the actual effect on reserved law, rather than slogans about either “vetoes” or “self-identification”.

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