The deja vu of Nicola Sturgeon shaking her fists at Westminster in the courts

Holyrood and Westminster have been locked in a gender reforms fight. But if Sturgeon thinks she has good chances to win this battle in the courts, she should think twice, writes Eliot Wilson

We have been here before. Nicola Sturgeon, the UK Supreme Court, bloated appeals to “the will of the people”, a sheepish lord advocate: yes, it could be last November’s one-sided clash over the competence of the Scottish Parliament (or lack of it) to hold a referendum on breaking up the United Kingdom. This time, however, it is another part of the Scotland Act 1998 in the spotlight.

The Scottish government’s Gender Recognition Reform (Scotland) Bill, which the Holyrood parliament passed just before Christmas, had always promised to be controversial. Essentially, the bill would make it easier to obtain a gender recognition certificate in Scotland, lowering the age at which people can change their legal gender from 18 to 16, removing the requirement of a medical diagnosis of gender dysphoria and reducing the waiting time from two years to six months of living in an acquired gender.

Last week, the Secretary for Scotland, Alister Jack, announced that he would invoke section 35 of the Scotland Act to deny the bill Royal Assent. This provision can block the passage of a legally competent bill if the UK government believes it would affect matters of reserved competence, in this case the Equality Act 2010. This is the first time that section 35 has been used, though it has been a provision of the devolution settlement for a quarter of a century.

With weary predictability, the first minister, Nicola Sturgeon, has reacted with affront-to-democracy fury. She has accused Whitehall of a “full-frontal attack on our democratically-elected Scottish Parliament and its ability to make its own decisions on devolved matters”, and vowed that the matter will “inevitably” end up in court. This means that the Scottish government would have to seek judicial review of the use of section 35, dependent on leave from the High Court of Justice, and the logical conclusion is that the case may well end up in front of the Supreme Court.

Jack justified the use of section 35 on the basis the bill would create two parallel but distinct regimes within the UK under which gender recognition certificates could be issued and interpreted. This, he said, would increase the potential for the fraudulent issuing of the certificates with an impact on safeguarding of women and girls, and would have a direct effect on the definition of sex, a protected characteristic under the Equality Act.

It would take a charitable attitude to argue that the Scottish government has engaged with the legal minutiae of the argument. The minister responsible, Shona Robison, a close ally of the first minister, has simply affirmed “This is legislation that is completely devolved, it is within the competence of the Scottish Parliament”. But the competence of Holyrood is not in dispute; section 35 allows the secretary of state to strike down competent legislation on grounds of incompatibility with other, reserved matters.

The auguries are not good for the Scottish government. A former deputy president of the Supreme Court, Lord Hope of Craighead, said last week that the Scotland Office’s statement of reasons was “devastating” and that the chances of a successful judicial review were “very low”.

There is a clash of motivation here. As with the referendum case in November, the SNP knows its legal case is shiveringly weak. In the case of the referendum bill, the lord advocate, Dorothy Bain KC, could not declare that it was within the competence of Holyrood and so could only refer the issue to the Supreme Court. Her expression when arguing in front of the justices spoke volumes about the strength of the case.

This is a wholly political strategy. The first minister wants to pit the legal proprieties of the devolution settlement against a notion of popular sovereignty, and portray the ‘Westminster Establishment’ as acting to frustrate the will of the Scottish people. It is a high risk move, with a majority of Scots opposing a relaxation of rules for gender recognition, but it is also unclear why the UK government decided to pick this particular fight, on this particular bit of legislation.

The Scottish government wants to make this a fight about independence. Certainly, when your only tool is a hammer, everything looks like a nail. But legally this challenge is likely to fail, and it is far from clear that the verdict of the court of public opinion will be favourable either. It does not require an overactive sense of mischief to observe that a Florida court has just fined former US president Donald Trump $1 million for bringing legal cases “intended for a political purpose”.