Nicola Sturgeon’s liberalisation of Scotland’s gender laws was not supposed to go like this. As she has plaintively pointed out on numerous occasions, Ireland adopted much the same policies in 2015, with relatively little controversy. It is, she says, just a tidying-up exercise, intended to make life easier for a tiny group of vulnerable individuals. And left-leaning, SNP-revering, Tory-loathing Scotland is unblinkingly committed to the causes of progressive politics, isn’t it?
On Thursday afternoon Holyrood finally and comfortably approved the reforms by 86 votes to 39, following days of heated parliamentary debate. The bill removes or reduces restrictions on changing gender and introduces self-identification: applicants for a Gender Recognition Certificate will no longer require a medical diagnosis of gender dysphoria; they will only have to have lived in their chosen gender for three months, rather than the previous minimum of two years; and the age limit for changing gender has been reduced from 18 to 16, although 16- and 17-year-olds will have to have lived in their new gender for six months rather than three.
Sturgeon has her win, but at what cost to her personal reputation and authority? The process has been extremely controversial, confrontational, divisive and upsetting for campaigners on both sides of the debate, which does not reflect well on her leadership skills. There has been a terminal break between the First Minister and many feminists, who will never forgive her for what they see as playing fast and loose with women’s rights; a significant split within her own, usually ultra-loyal party; a public that, as it has begun to pay attention to the debate, has shown itself at best unconvinced by her agenda; and now the prospect that the legislation could anyway be blocked by the British government because of its potential impact across the wider UK.
What a mess. A poll published last week by YouGov found Scots unimpressed: 60 per cent were against removing the need for a medical diagnosis, 59 per cent against the reduction from two years living in the new gender, and 66 per cent (including 63 per cent of SNP voters) oppose the age cut from 18 to 16. It’s not the first survey to detect this unease.
Sturgeon’s feminist opponents have argued that single-sex, women-only spaces such as shelters for victims of sexual assaults, bathrooms, changing rooms and hospital wards will be opened up not just to trans women, but also to biological males, including sexual predators, taking advantage of the system. They feel Sturgeon has simply refused to openly discuss, listen to or even particularly acknowledge their concerns. This week’s debate at Holyrood at times had to be suspended to deal with disruption in the public gallery, from where campaigners shouted “shame on all of you” at MSPs. During a committee stage of the process, in November, a woman was ejected for refusing to remove a scarf in suffragette colours. Last week Lady Haldane, a judge at the Court of Session, ruled that trans people would now be included in the definition of women in terms of female representation on public sector boards. This has led legal experts to warn of a broader dilution of attempts to advance women’s rights in the workplace.
The matter has gone far beyond Holyrood, too. UN experts have intervened. It has all taken place amid growing global concern about the side effects of puberty blockers and cross-sex hormones on under-18s, while south of the border the Tavistock NHS gender and identity clinic has been ordered to close, and the Mermaids charity is being investigated by regulators.
The British government has begun to explore the possible cross-border implications of the legislation, with Kemi Badenoch, the women and equalities minister, holding a virtual meeting on Monday with Shona Robison, Scotland’s social justice secretary. What happens if someone with a Scottish Gender Recognition Certificate moves to another part of the UK that doesn’t legally recognise it? Changes in Scotland also seem likely to clash with equal opportunities law, which is reserved to Westminster. This could lead to the UK government issuing a Section 35 order preventing the Scottish Parliament from submitting its bill for Royal Assent – a move that would doubtless lead to the Supreme Court.
This has proved to be a curious episode in Sturgeon’s career and has played against type. In eight years as First Minister she has side-stepped confrontational legislation in almost every other policy area, including much-needed reforms in important areas such as health and education to avoid battles with the trade unions. The transgender debate is a rare example of Sturgeon tying herself to the mast. Why? It’s worth remembering that in January 2021 the First Minister released a video message on Twitter saying that she had heard reports of “mainly young people in significant numbers leaving the SNP” because of perceived transphobia among older members. She pledged to do “everything I can to change that impression and persuade all of you that the SNP is your party and that you should come home where you belong”. The Nats put great store in keeping young Scots – who are more likely to be both pro-independence and pro-trans rights – on side, and this may be one reason, as well as personal principle, that Sturgeon has proved so stubbornly committed.
The prospect of yet another high-profile legal battle with the British government will not overly concern Sturgeon – in fact, she may view it as a lovely little Christmas bonus. The Nats live for grievance, conflict and constitutional tugs of war with Westminster. They positively preened last month as the Supreme Court ruled against their proposed second independence referendum, and Sturgeon went on the warpath, promising the next general election will stand as a referendum instead. The polls since have shown a new and consistent lead for the pro-independence campaign, suggesting certain voters will chafe at any indication Westminster can restrict the actions of Holyrood. A similar outcome this time may give the SNP another bump. It would also be a helpful distraction from the substance of the gender issue.
And the SNP is clearly worried about public opinion now. In a short press release to mark the passing of the legislation, the party eschewed its usual triumphalism and hogging of the limelight and instead shared responsibility for the reforms with Labour, the Lib Dems and the Greens. The second paragraph said: “The change has been discussed since 2016, when every Scottish political party committed to review the outdated process of obtaining a GRC in their 2016 manifesto, and the SNP committed to reform again in the 2021 manifesto as did all parties except the Conservatives. The proposed change has been publicly consulted on twice and, having been returned to Government in the Scottish Parliament election, the SNP introduced the legislation which Holyrood’s Equalities and Human Rights committee spent months scrutinising – including taking evidence from many organisations, experts and witnesses.”
The message to the public is clear: it wasn’t just us that did this, and it wasn’t rushed through without people having a chance to make their minds up, whatever you might think. How odd that, after all that, they still have so much explaining to do.