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Badger and the Dead Cat Theory

ACCORDING to the results of the 2021 Census, 0.3% of those who responded to a question on their gender said they identified themselves as one other than that assigned at birth. The Census recorded 48,000 (0.10%) identified as trans men. A further 48,000 (0.10%) identified as a trans women. Another 30,000 (0.06%) said they were non-binary. Finally, 18,000 (0.04%) wrote in a different gender identity.


The population of those minorities – of all of the UK’s minorities – is largest in cities. Human behaviour is what it is, so that statistic is unsurprising. It is easier to be a member of a minority in a crowd.


The national media are city-based. They reflect metropolitan interests and the interests of those disproportionately represented in urban populations. Similarly, most politicians represent urban areas. Their interests and interactions are also metropolitan. When politicians speak to the media, they generally reinforce each other’s biases about what is or is not important to most people.


That goes a considerable way to explain why when, with the greatest possible respect, there are many pressing issues for it to address, the Scottish Parliament spent years debating its Gender Recognition Act. A cynic would suggest it distracted from the repeated failure of the Scottish Government to improve the lives of Scottish citizens. 


Badger is no cynic. Enough MSPs were convinced they were right and opinion polls wrong to pass the Act. In a representative democracy, where politicians use their judgement to decide on legislation, that’s fair enough.


That said, the only measure by which SNP governance of Scotland can be judged a success is when compared to the worst series of UK administrations Badger can recall. For all its superficial glimmer, a turd rolled in glitter placed next to another turd remains a turd.
Time and political capital are scarce resources. Governments must spend them carefully. That brings us to the UK Government’s decision to block Scotland’s Gender Recognition Act.


Badger predicts an attempt by the Scottish Government to review the decision through the Courts will fail. And the Scottish Government knows success is unlikely. However, unlike most of what passes for comment journalism, Badger will show his readers his workings.


Contrary to beliefs peddled by fringe nutters and Daily Mail columnists, Courts do not routinely strike down laws they don’t like because Judges are all lefty liberals. Courts only consider whether a decision reached by a public body is unreasonable, illegal, or should be annulled due to procedural impropriety. There’s another bit, which Badger will get to near the end.


Just because a decision made by a local authority or Parliament is unpopular (or someone doesn’t like it) doesn’t make it legally wrong. Not all grievances give rise to a right of redress through the courts. That’s something green ink or single-issue obsessives must remember when brandishing legal threats willy-nilly.


The row between Holyrood and Westminster is superficially complicated but boils down to a series of simple propositions.
The Equality Act 2010 is a UK-wide piece of legislation. Westminster reserves powers from devolved administrations when it comes to amending its terms. The UK Government argues the Gender Recognition Act alters the scope and effect of UK-wide legislation. That brings it under the powers the devolution settlement kept for Westminster. If you accept that reasoning, the Scottish Secretary – Aleister Jack – was right to use the Scotland Act’s provisions to block the Scottish Parliament’s Act.


The Scottish Government must persuade a Court not that the Scotland Act is wrong but that how Mr Jack used it is so beyond the bounds of reason that no reasonable decisionmaker could’ve done as he did.. That is the legal test of “unreasonableness”. To which Badger says, “fat chance”. Either that or Holyrood must show the decision was illegal (also, fat chance) or was the subject of a procedural error so awful the Court must set it aside.


The Scottish Government’s arguments must address those principles. You can take it for granted the Court will not strike down Section 35 of The Scotland Act because Nicola Sturgeon objects to it.


So, we come to where the meat meets the metal.


If the Westminster Government can show that Mr Jack made his decision based only on relevant considerations to his power’s use – or if the Scottish Government fails to cast sufficient doubt on the process, a judicial review must fail. 


The UK Government’s task is straightforward. The Scottish position is much trickier. Judges do not like – and mostly will not consider – second-guessing a politician’s intentions.


However, there is a small liferaft to which the Scottish Government could cling. It gets tricky here, as it involves a Judge metaphorically wandering around a Minister’s intellect looking for a thought process. 


Think of it as a trek across a barren desert seeking clear water.


If a decision interferes with individuals’ basic rights, a judge can consider whether the decisionmaker disproportionately used their power. The Scottish Government’s lawyers must persuade the High Court Mr Jack’s decision was not rationally connected to the statute relied upon to block the Gender Recognition Act. They must also show his decision went beyond his powers’ proper use and further than necessary to achieve his policy goal (harmony in the UK law’s application) across the UK disproportionately.


Sentiment doesn’t come into it: this is not Judge Judy or a hammed-up courtroom scene in a soap. Reviewing how public bodies use their powers is a forensic exercise. It’s not a popularity contest, no matter how aggrieved the party bringing the action and their supporters are.


Badger doesn’t doubt there’ll be right old hootenanny outside the Court, with many people appearing angry and distressed for the cameras and blanket coverage in news bulletins and newspapers.


It’ll be a colourful distraction for commentators on all sides who will line up to take ever more extreme views and play silly word games about “rational” and “unreasonable.”


Pope Mogg might be persuaded to express an opinion, and maybe Her Holiness Caitlyn Jenner. And all because the Scottish and Westminster Governments are keen to pick a fight to distract us from more present and pressing problems. 


Headlines ahoy! Here comes the dead cat.


All Badger sees is two governments using transgender individuals as political pawns to fight constitutional arguments by proxy.
Here comes the dead cat. Headlines ahoy!

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