Gender bill: Lawyers and MPs react to UK's Section 35 explanation

With First Minister Nicola Sturgeon saying the matter would “inevitably” end up in court, the document will be scrutinised by legal experts in the days and weeks to come.

Here, we take a look at some of the reaction so far.

As if written by someone on work experience

When Scottish Secretary Alister Jack addressed the Commons on the Section 35 order on Tuesday, he was challenged to read the legal advice after repeatedly referring to a statement of reasons being published later.

SNP MP Tommy Sheppard said it was circulated while the debate was taking place after MPs “dragged it out” of Jack on the floor of the House.

Speaking on BBC Radio 5 Live he said: “And it looked as if it was written by someone on work experience to be honest, it was really bad, completely uncompelling, very thin.

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“And the gist of it is that there is a problem because we have a different system now in Scotland for achieving gender recognition certificate (GRC) than would exist in the rest of the UK.

“That is what devolution means – we have different processes for licensing regulations, for charity regulations, for 101 things – you either want to have devolution in the UK or you don’t want to have it.

“And actually written into the face of the Scotland bill is a clause that says it does not contradict or overturn any of the provisions of the 2010 Equality Act.”

A nuclear weapon being used for minor skirmish

The former Lord Chancellor who oversaw the introduction of the Gender Recognition Act 2004 said the reasons given by the UK Government “do not begin to justify” the use of the Section 35 order.

In a series of tweets, Labour peer Lord Falconer questioned the idea that it would present administrative difficulties such as for the benefits system, with the number of gender recognition certificates potentially rising from 30 up to 550.

On the issue of the risk of fraudulent applications he wrote the process is easier and so the risk is increased – but said taking into consideration the number of additional applications, the “vast majority” are likely to be genuine.

“The authorities can monitor applications and the Chief Constable is able to inform the Registrar General (RG) of any person in respect of who they make a sexual protection order application so the RG will not grant them a GRC, the risk of fraud does not possibly justify S35,” he added.

Falconer also questioned arguments given in the Statement of Reasons in relation to the impact on the operation of the Equality Act, including that associations could have different membership in different parts of the UK.

But he added: “There is no exclusion within the Equality Act which would allow a single sex association to exclude a person with a GRC from membership of the association.

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“Already associations such as those which provide support for women victims of sexual violence would be guilty of gender assignment discrimination if they refused membership to biological man with GRC making her legally a woman.

“The possibility of some proportion of the extra 525 applicants seeking to join such an association seems an utterly unsustainable basis for S35.”

He concluded: “For the reasons I have tweeted those reasons do not begin to justify its use. It’s a nuclear weapon used in a minor skirmish.”

A devastating document

However former Supreme Court judge Lord Hope has taken the opposite view, arguing the UK Government’s Statement of Reasons is a “devastating document” for those who want to keep the Scottish legislation as it is.

In an interview on BBC Scotland’s The Nine programme, he said: “There are a whole series of criticisms about the way in which the safeguards which the 2004 Act has in it are being removed.

“I am not criticising the policy behind the bill, because I well understand the concerns that have led to the bill being enacted in its present form, but the problem is it does open up a whole series of objections when you look at the modifications it makes to UK law.”

Hope said the gender reform bill “certainly does” make modifications to the existing UK law.

He added: “That is indeed the whole purpose of the bill itself to make the acquisition of a certificate that much easier. It does that by making modifications.

READ MORE: What next as Scottish and UK governments enter legal war over gender bill?

“Then the question is was the Secretary of State acting reasonably in deciding to make the order and when you look at the reasoning in the document it is very difficult to see how a court could come to a conclusion to the contrary effect.

“That makes me think that actually to go to court and argue it through the various layers of court is a mistake, it seems to me they are risking a lot of time, because it will take a lot of time going through all the layers of court until you get to the Supreme Court, and also questions as to whether it is a sensible use of public money.”

He suggested it would be better for the UK and Scottish governments to work out a compromise on the legislation.

"I'd have thought the best thing to do would be for people to get round a table in a much calmer atmosphere and see to what extent they can work through the various objections,” he added.