Nicola Sturgeon is a politician who sees the value in explaining herself. Her public handling of the Covid crisis, a complex, fast-changing and often confusing set of circumstances, has been transparent and detailed, with the messaging relayed in fluent human. This has been of a piece with the First Minister’s approach to policy more generally. She seeks to clarify and persuade.
If any subject needs the kind of rational, measured and thorough public airing at which Sturgeon usually excels, it is the debate over transgender rights. It is an issue that requires many people to confront their own prejudices and that draws bigots from dark corners, but is also one that, handled correctly, will improve the lives of a small minority of souls who have long had to struggle against societal norms and faced significant physical and mental health challenges.
How strange, then, that this is a topic where the First Minister seems to have gone against type. As the row over trans rights has raged she has given the impression that she’d rather avoid discussing the intricacies involved. She has been, if not dismissive of concerns expressed by many women about the potential impact changes to the law might have on female identity and secure spaces, then perhaps less than willing to engage with them in any real depth. There is no threat to women’s rights from her planned changes, she continues to insist. The critics are simply wrong. Move on.
I don’t think there can be any doubt about the motivation behind Sturgeon’s proposed reforms. She genuinely wants to help trans people, to ease what can be a heavy burden and a fraught existence. That is surely to her credit.
But it also looks like the First Minister’s normally astute political antennae have failed her, which might in part account for her curious public caution. Early on, her government adopted the liberal position that a person should be allowed to change their gender in law based on self-declaration, without any need for medical involvement. Currently, the law states that anyone seeking to change gender must have lived in their new identity for a minimum of two years and have secured a medical diagnosis of gender dysphoria.
A poll released this week, commissioned by the policy consultants MurrayBlackburnMackenzie, found that 64 per cent of Scots believe that people should be able to express their transgender identity freely, with only 13 per cent disagreeing. This view is in the majority across all demographic groups.
But still, there is general concern about the legislation proposed by Sturgeon. There remains strong public support for retaining an element of medical approval – only the 18-24 age group disagrees. Among SNP voters, support for a medical model commands 1.6 times the support of a non-medical approach.
It should be clear from this data that the allegations of transphobia so casually and heatedly thrown around by online campaigners are ill-founded. We live in a time in which self-expression and difference cause the vast majority of people little difficulty. This is not the 1980s redux. It is an era, for most, of live and let live. But there remain valid and so far largely unaddressed concerns about the cultural, societal and human impact of the Scottish government’s laissez-faire approach to gender identity. This is the point made by JK Rowling and others, and they are not wrong.
This gap between government and the governed matters. The trans issue retains its ability to create a public uproar like few others. In Scotland this week a senior police officer was criticised for suggesting that a rapist could be recorded as a woman “where a person born male but who identifies as female and does not have a gender recognition certificate… commits rape”.
It was quickly pointed out that in Scots law rape is defined as non-consensual penetration with a penis, and that in such circumstances the rights of the rapist might take second place to that of his victim. The police were quickly forced to backtrack and SNP Justice Secretary Keith Brown to admit the idea was not without its “dangers”.
By getting so far ahead of public opinion, Sturgeon has left herself in an exposed position. There are plenty of people in her own party – not just supporters, not just activists, but in her cabinet too – who have concerns with the administration’s position. Sturgeon’s apparent reluctance to engage openly and in detail on the matter is creating tension rather than reducing it. In the end, this doesn’t help the trans community – arguably, it endangers it.
There is an obvious need for a mature and mutually sympathetic discussion about trans rights in Scotland. The public are clearly up for it and want to do the right thing, within reason. But a debate like this can and should only be led by the First Minister. So, once again, where is she?[see also: How to talk about trans rights]