Last year’s SNP manifesto promised to “work with trans people, women, equality groups, legal and human rights experts to identify the best and most effective way to improve and simplify the process by which a trans person can obtain legal recognition, so that the trauma associated with that process is reduced”, but also to “ensure that these changes do not affect the rights or protections that women currently have under the Equality Act”.
Unfortunately the Gender Recognition Reform (Scotland) Bill, published last week, does not live up this promise. This is why social media has been awash with arguments over the bill – not least from JK Rowling who has, for example, said it “will harm the most vulnerable women in society: those seeking help after male violence/rape and incarcerated women”.
Rowling is right. If this bill becomes law, the right to a gender recognition certificate (GRC) will be granted not just to trans people, but to any man who wants to self-identify his way into women’s services, spaces and sports, based on nothing more than his say-so. Anyone above the age of 16 will be able to change their sex in law, three short months after applying to do so, with no medical diagnosis – based simply on their declaration that they have “lived in the acquired gender” for three months and intend to continue to do so permanently. What that means is not defined. Nor is the word “gender”. The word “sex” does not appear at all in the bill.
It is telling that a recent freedom of information request revealed that the Scottish government gives sex its ordinary meaning, but does not have an official definition of gender. Scotland’s Supreme Court recently reminded the Scottish government that under the Equality Act, the protected characteristic of sex is a reference to a biological man or woman. Yet the effect of the bill will be to conflate gender with sex, because, despite the failure to mention sex on the face of the bill, anyone will be able to change the sex recorded on their birth certificate based solely on their self-declared gender.
Concerns have been raised about the impact of this on the provision of single-sex services, the collection and use of data, participation and drug testing in competitive sport, and practices within the criminal justice system. These concerns have been articulated by grassroots groups led by women, such as For Women Scotland, the LGB Alliance and also by the UK’s independent watchdog, the Equality and Human Rights Commission (EHRC). Indeed, the EHRC has said that the current law, the impact of these changes upon it, and disputed terminology have led to an increasing number of contested claims with regards the use of sex and gender. So, concerns have been raised by just the “equality groups, legal and human rights experts” that the SNP manifesto promised to work with. Yet their concerns have been dismissed – and worse still, derided as “transphobic”.
The fear that some men will abuse the opportunities presented by this bill is not rooted in transphobia, but rather based on the lived experience of many survivors of sexual abuse at the hands of men. Last week Shona Robison, the cabinet secretary for Social Justice, Housing and Local Government, told the Scottish parliament: “There is no evidence that predatory and abusive men have ever had to pretend to be anything else to carry out abusive and predatory behaviour.”
I disagree. As a former specialist sex-crimes prosecutor, I would struggle to list within this short article the number of instances I have heard of men who presented themselves as anything but the abusers they were – in order to trick, cajole and even shame women and children into situations where they could be assaulted and raped.
The Gender Recognition Act 2004, which the proposed bill amends, was intended for a small, defined group of transgender people going through a medical transition. It therefore requires a medical diagnosis of “gender dysphoria” before allowing someone to change their legal sex. It is frequently pointed out that the World Health Organisation has removed gender dysphoria from its list of mental health conditions, but it remains a sexual health condition; it is indeed the basis upon which many transgender people receive healthcare from gender identity services. Furthermore, the 2004 act also makes it a criminal offence for an official to reveal a GRC holder’s birth sex. Fair Play for Women has pointed out that this legal right to conceal birth sex is problematic for single-sex spaces: we need to know someone’s birth sex if we want to guarantee single-sex space based on birth sex. Giving out GRCs on demand will exacerbate what is already a problem.
Removing the medical diagnosis associated with transitioning is not the only safeguarding issue. Reducing the age to 16 scraps an essential safeguard for minors at a time when the rate of young people who seek to transition, particularly young girls, is increasing at an exponential rate – and a UK government review of this phenomenon by Hilary Cass has yet to report. The bill also poses a problem for the growing number of de-transitioners – mostly young men and women who believed themselves to be transgender and went some way down the road to full transition, sometimes including life-changing drug treatment and irreversible surgery on sex organs. Indeed, the only, albeit oblique, reference to this cohort of young people was to include provisions in the bill for anyone making a “false declaration” to be prosecuted with up to two years in prison.
Many of these concerns trouble my SNP colleagues and politicians of all parties. But such is the power of the lobby behind self-identification, their “no debate” mantra has succeeded in silencing all but a few determined voices. This is not healthy for our democracy, evidence-based policymaking or parliamentary scrutiny.