Humza Yousaf must not prolong the legal battle over Scotland’s gender reform law after the controversial legislation was ruled by the UK’s Supreme Court to be illegal, Kate Forbes, the woman he narrowly defeated to become Scotland’s First Minister, has said. Mr Yousaf claimed devolution was “fundamentally flawed” after the Court of Session’s ruling that the UK Government had acted lawfully in using a Section 35 order (S35) of the Scotland Act to block the Gender Recognition Reform (Scotland) Bill from gaining royal assent.
Speaking on Friday, he vowed to take time to consider the judgment. However, Ms Forbes underlined the growing splits within the party when she told him it was now time to admit defeat, warning any appeal could “exacerbate” divisions rather than heal them.
Writing on X, formerly Twitter, the Scottish Government’s former Finance Minister, who edged out by Mr Yousaf earlier this year, said: “I previously argued that Scot Gov shouldn’t contest S35 unless there was a very high chance of success. A loss for Scot Gov would obvs absorb public funds but could embolden future UK Govs to interfere in devolution, which no party of independence wishes to see.”
The Skye, Lochaber and Badenoch MSP added: “Most worrying, it has created a period of great uncertainty and fear for trans people and women and girls, deepening already bitter divisions. All politicians must heal divisions not exacerbate them. That means listening.
“The priority should now be to give security and clarity to trans people and to women and girls. I urge the Gov not to prolong the legal battle further.
“I have confidence in our citizens and democratic processes to safeguard rights of everybody in a reformed Bill if we listen to all.” Ms Forbes has urged the First Minister to work with MSPs to develop a “reformed” Bill that works for campaigners on both sides of the argument.
The legislation is intended to simplify the process for transgender people to obtain a gender recognition certificate (GRC) and officially change their legally recognised sex. The legal challenge cost the Scottish Government around £230,000 and ministers now have three weeks to decide whether they want to appeal against the decision at the Supreme Court.
In her ruling, Lady Haldane, who presided over two days of evidence in September, said the Scottish Government’s petition “fails”, dismissing arguments from Lord Advocate Dorothy Bain that Scottish Secretary Alister Jack launched the never-before-used power because of a policy disagreement. She also agreed that reserved equality laws would be altered by the Scottish legislation because it would mean the GRC would be altered by removing the gender dysphoria diagnosis.
During the leadership contest earlier this year, which saw Ms Forbes come a close second to Mr Yousaf, the gender reforms were a significant part of the debate. Ms Forbes has been a strong critic of the proposals in their current form and she said she would not have voted for the Bill if she had been in parliament instead of on maternity leave during the crucial vote.
Speaking in February, she told The Scotsman: “I would have voted, as a matter of conscience, along the lines of mainstream teaching in most major religions that marriage is between a man and a woman. But I would have respected and defended the democratic choice that was made.
“It is a legal right now and I am a servant of democracy. I am not a dictator.”
She previously said: “My concerns about self-ID have been well documented and I would have continued to have those concerns about self-ID. It’s very difficult to talk hypothetically when it comes to a Bill but I think I would have struggled to support that self-ID element of the Gender Recognition Act.”
