No supporter of indy should want Scotland to abandon GRR Bill

What seemed clear to me then was that to make the case for independence we would need to demonstrate fully that the cause of our liberation would be better served by a Scotland outwith the United Kingdom, rather than as a nation ruled from a London parliament which increasingly views human rights as an irritating inconvenience.

Friday’s Court of Session ruling on Secretary of State for Scotland Alister Jack’s decision to use a Section 35 order to block Holyrood’s Gender Recognition Reform Bill has done more to solidify that position than anything before it.

Lady Haldane’s ruling that the UK Government has the legal right to block the GRR Bill makes clear the paucity of the devolution settlement and comes at a painful cost to our nation’s transgender community.

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Haldane’s ruling noted that, on the arguments put forward by the Secretary of State to justify his position, “not all of the reasons carry equal weight” and “concerns expressed in relation to the adverse effect on those parts of the Equality Act relating to clubs and associations, and single-sex schools, for example, might be thought to be less weighty than some of the others identified”.

The entire crux of the concerns voiced, it seems, were weak. Yet regardless of how poorly the case was made, Haldane disagreed “that any or all of them must fall on the basis that they are unsupported

by “evidence”. The precedent set in her ruling is that the mechanism for using a Section 35 order does not truly need to be evidenced, but rather that “the Secretary of State [is] only … bound to take such steps as are reasonable to inform himself” before making a decision.

Which is to say the Secretary of State does not need to show that his decision to block Scottish legislation is inherently justifiable, nor demonstrate in which manner the legislation would have an impact on reserved powers, but rather needed only to show that he believed it to be the case, no matter how wonky and unfounded his “evidence” may be.

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Haldane’s Section 35 ruling has nothing to do with whether or not Jack was right to block the GRR Bill. Just that he could. It doesn’t only put progressive LGBT legislation in Jack’s firing line – it places any and all legislation passed by the Scottish Parliament in the path of a hostile Scottish Secretary to pass or reject with little oversight.

Haldane continues that the 1998 Scotland Act, which contains the mechanism for triggering a Section 35 order is, does not stipulate that there are “any particular requirements or standard that the reasons [presented by Jack] must achieve” – relegating the entire process of triggering a Section 35 order down to a vibe check by the UK Government. It’s an egomaniac’s charter.

This line of thinking could have equally applied to Scotland’s marriage equality legislation. It also impacts on reserved matters in much the same way as the GRR Bill would have, by setting up a Scottish certification system that in turn must be respected and acknowledged by English legislatures. It’s hard to read this as anything other than carte blanche to overextend Westminster policy into areas it has no right to intrude and unfortunately, a change of government is no solution to the problem.

Should Labour win the next General Election, they would have the option to lift the Section 35 order and let the legislation move to gain royal assent. As the bill has already passed the Scottish Parliament (with a whopping cross-party majority) there would be no need to re-submit and vote again. Haldane’s ruling, after all, made no declaration on the validity of the bill itself. Only on whether or not the Secretary of State could legally block it, regardless of his evidence for doing so.

But Labour have unfortunately shown the same hostility to the LGBTQ+ community as their Conservative colleagues and have embraced the possibility of using Section 35 themselves in the future.

We have entered a new era of devolution and Westminster’s elite are resolute in their belief that they know better than our elected representatives. It is unfortunate, then, that parts of the independence movement are so riddled with transphobic sentiment that some are calling for the Scottish Government to lie down on this issue.

This should be a rallying call not just for the LGBTQ+ community, but to all who want an independent, democratic Scotland – a call to smash this broken Union to pieces.

Wherever you stand on trans rights, Westminster has demonstrated an utter disregard for Scotland as a supposed partner in the Union. And with both Labour and the Conservatives failing to uphold the principles of human rights, we are all under threat.

Westminster’s parties have turned on minority groups to secure the right-wing vote. They have withheld legislation that would have partially banned conversion therapy practices. They have demonised and mocked the transgender community.

And now they have shown they will not let a little thing like devolution stand in the way of pressing their ignorance further into Scotland, further and further. The LGBTQ+ case for independence could not be stronger.