Just when you thought it was safe to go to back in the gender-neutral loo, back comes the row about the Gender Recognition Reform Bill. It lands in Scotland’s highest court today, the Court of Session. Lady Haldane will hear three days of argument on the UK government’s unprecedented veto under the Section 35 of the Scotland Act.
The GRR Bill, passed by the Scottish parliament in December after an acrimonious late-night debate, could allow people as young as 16 to change legal sex without a medical diagnosis of gender dysphoria. It is opposed by around two thirds of Scottish voters. But the Scottish government is determined to see it on the statute book.
For many women, self-ID is an existential issue
Those who don’t actually live in Scotland might wonder quite what this has to do with them. The Bill was within the powers of the Scottish parliament – even the UK government accepts that, as the Lord Advocate, Dorothy Bain, will argue today. What business is it of England if the Scots wants lads to become lassies at the stroke of a pen?
David Johnston KC will argue for the UK government that it very much does matter. While this legislation is technically within Holyrood’s competence, it would have an ‘adverse effect’ on the operation of UK equality, he will say.
The reason why is simple: the UK government is not introducing self-ID as it is called in England. Equalities Secretary, Kemi Badenoch, believes doing so could undermine the 2010 Equality Act and might allow predatory men – mentioning no names – to gain access to women’s changing rooms, toilets and sporting events. The Equality and Human Rights Commission has also noted its concerns about the ‘cross border’ impact of the GRR Bill.
If the Scottish Bill becomes law, it is highly unlikely that gender recognition certificates (GRCs) awarded in Scotland under self-ID would be valid in England. This means trans people could effectively have to change their legal sex at the border. Someone resident in Scotland might apply for a job, a benefit or a pension as a woman and find that the UK company, or the DWP, regards them, quite legally, as a man.
This is, of course, absurd. There seems very little prospect of this anomaly being endorsed by the UK Supreme Court should it ever be asked to adjudicate. So why did campaigners like Stonewall not focus more of their fight where it really matters: the UK parliament? That’s the only body which has the legal authority to decide on reserved UK-wide law like the 2010 Equality Act.
Well, one suspects that the trans lobbyists knew perfectly well that this conflict would arise and they hoped it would lead to a change in UK law by the back door. After all, no one is going to seriously suggest having gender police at Carlisle checking that people change sex as they enter England. Scottish GRCs would willy nilly be accepted UK-wide because it would be just too difficult to do otherwise. UK law would change by default.
This whole gender campaign has been conducted largely under the radar and with little open debate. Many Scots only realised what self-ID meant in January when the male-bodied rapist, Isla Bryson, (aka Adam Graham) was placed on remand in a woman’s prison, Cornton Vale, in Stirling.
There was a public outcry. The Bryson row formed the backdrop to Nicola Sturgeon’s abrupt resignation as First Minister in February. Her successor, Humza Yousaf, is now trying to argue that self-ID is not the issue. It is about the Tory government’s ‘full frontal assault’ as Sturgeon called it on Scottish democracy, on the powers of the Holyrood parliament. But this is a futile argument.
Westminster is ultimately sovereign in all matters, devolved or not, as the Scotland Act 1998 makes clear. Section 35 was included for precisely this kind of conflict of jurisdictions. It allows the UK government to strike down any Scottish Bill which modifies UK wide law as the GRR Bill manifestly does.
It is a mystery why Yousaf perseveres with this doomed judicial review which has split his party and alienated many SNP feminists. For this is more than a dispute about constitutional theory.
For many women, self-ID is an existential issue. ‘Gender critical’ feminists like JK Rowling believe that women’s status in society is based on their biological sex, on the facts of reproduction. Men cannot become truly female just by putting on a dress and signing a piece of paper.
What is being debated by the Court of Session today is really the question of what defines a women: biology or feelings. Most people in Scotland are in little doubt.
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