Beyond the securing of a second independence referendum, the greatest challenge facing the Scottish government in the current session is the delivery of its contentious Gender Recognition Reform Bill.
The bill, which would allow trans people to self-identify as whichever gender they choose without a medical diagnosis, was introduced in 2016. But it had such a polarising effect it was delayed by way of a second – as-yet unpublished – consultation.
As in England, where attempts to bring in similar legislation failed, the bill has divided those within the SNP and the wider independence movement into entrenched pro and anti camps. Those who oppose it – mostly gender-critical feminists – say it threatens women’s spaces such as domestic abuse refuges and prisons. Those who support it say their opponents are stoking unjustified fears and trying to deprive trans people of their human rights.
In the Republic of Ireland, this move to self-ID came into force without a backlash in 2015. But in Scotland, the reform of the Gender Recognition Act (GRA) has been weaponised as part of the feud between Alex Salmond and Nicola Sturgeon, and of the wider culture war. Acolytes of Salmond tout themselves as the great defenders of Second Wave feminists and decry the SNP mainstream, which support the bill, as the “wokerati”.
One of the few things the two “sides” agree on is that the issue has been badly handled. Those on the gender critical wing say that, despite the consultations, they have been marginalised and their concerns dismissed. The introduction of a new Hate Crime Bill, which does not include sex as an aggravator, has heightened their anger. A working group has been set up to consult on a stand-alone offence of misogyny, but that has not stopped allegations from critics that the SNP’s priorities show it “hates women”.
Pro-trans activists also feel let down. They insist the leadership has failed to tackle misinformation pedalled by “bad faith actors”, allowing it to take root. “Where was [equalities minister] Shirley-Anne Somerville when the transphobes came for us?” one woman, who has received death threats, asked. “We were left to defend the government’s policy.”
But some of those SNP members who signed the Women’s Pledge, calling for the protection of “sex-based rights”, have also abandoned the party. They have defected to Salmond’s new party, Alba, which promised to champion their cause.
This is the bitter landscape in which the SNP finds itself as it returns for an unprecedented fourth term in government.
It is true the election has changed the dynamics. Some of the bill’s most vocal critics – including Labour’s Johann Lamont and the SNP’s Joan McAlpine – have gone, while the number of MSPs for the Scottish Greens, who support it, has increased from six to eight.
The Greens, who appear to see all debate on the bill as beyond the pale, will want to push it through as quickly as possible. But the SNP recognises the need for conciliation, not least to keep wavering Yes voters onside.
In its election manifesto, the SNP charted a middle path. It pledged “to tackle transphobia head-on through education and make changes to the GRA, in consultation with trans people, women, equality groups, legal and human rights experts”. At the same time, it committed to safeguard “the rights or protections that women currently have under the Equality Act”.
One suggestion for moving forward – mooted by Alba – is a Citizens’ Assembly similar to that held on abortion in Ireland. Its call to repeal the eighth amendment, which restricted terminations to women whose lives were in danger, was later ratified in a referendum.
This mechanism has clearly proved its worth in some situations, but there is a danger a Citizens’ Assembly might replicate – or worse still, amplify – the current dynamic, stoking rather than defusing the conflict.
An alternative would be an exercise similar to the Northern Ireland peace process (albeit on a much smaller scale), requiring the two sides to work together on a solution.
“In the five years since the policy was introduced, there has been no occasion where people on different sides of this debate have been brought into the same room together by the Scottish government,” says Lucy Hunter Blackburn, a former civil servant who co-founded independent policy analysis collective Murray Blackburn Mackenzie. “That is astonishing.”
Hunter Blackburn, who has concerns about aspects of the bill, says good policy builds constructive solutions through process.
“No one likes this hole we are in,” she says. “No one likes this sense of conflict, but the answer will not be someone sitting on their own in a room coming up with an answer.
“Getting the government out of holes is a core civil service skill. It’s about getting people together and then exploring their feelings of anger and vulnerability. It’s about talking it through, not simply telling them they shouldn’t feel that way. It’s also about dispelling people’s misconceptions about each other’s positions. But for this to work it requires a real input of resources.”
In the short term, there has been some effort to shift the debate away from this particular law to the issue of trans healthcare (although, even here, there’s the risk that hormone therapy will be pitted against, say, treatment for ovarian cancer). But, at some point, tough calls will have to be made. Privately, some pro-trans activists accept ground will have to be ceded over women’s refuges and prisons.
Perhaps the most effective solution, in addition to face-to-face conversation, is to give something to everyone; to create a piece of legislation which increases trans and women’s rights at the same time.
“You could say: ‘Yes, we are going to allow people to change gender without a medical diagnosis, but we are also going to protect women’s spaces and create a new misogyny offence’,” one advocate of GRA reform suggests. “Then, at the same time, you could increase the money going to women’s refuges to protect them from local authority cuts and reinforce the importance of the work they do.”
One way or another, it is important for the SNP to lance the toxicity surrounding the GRA as quickly as possible. No one wants to head into the next referendum campaign with the movement still divided on this faultline of the culture war.