My appeal to the Scottish Government to press pause on gender self-ID

  • First published in : Visit Website
  • First published on: 25th Feb 2022

Last week I wrote about what the constitution of an independent Scotland might look like and reminded readers that, back in 2014, it was the intention of the Scottish Government to enshrine the protected characteristics of the Equality Act into our fundamental law. If that had happened then current efforts to redefine what it is to be a woman may well have been unconstitutional, while at the same time the rights of trans people as defined by the protected characteristic of “gender reassignment” would have continued to enjoy equal protection. 

Instead, it took Scotland’s Supreme Court, the Inner House of the Court of Session, chaired by Lady Dorrian, Scotland’s second most senior judge and the first woman ever to hold the role, to remind us that at least under the Equality Act, a piece of legislation largely reserved to Westminster, a woman is a female of any age and provisions in favour of women, by definition, exclude those who are biologically male. 

This ruling would not have been secured had it not been for the fundraising efforts of For Women Scot. This grassroots feminist organisation run by volunteers and financed by small donations took on both the Scottish Government and organisations largely funded by the government, to successfully challenge the expansion of the definition of woman for the purpose of the Gender Representation on Public Boards (Scotland) Act 2018. 

The essence of this decision is that the Scottish parliament cannot redefine what a woman is under the Equality Act because that is a reserved matter. It could well have significant implications for the draft Gender Recognition Bill which it is understood the Scottish Government had intended to introduce to parliament yesterday. Yesterday came and went with no Bill and now we understand that there will be a Ministerial statement next Thursday. If the current draft of the Bill introduces a system of self-identification of sex, there would be clear implications for provision of single sex services to women under the Equality Act. The Lord Advocate needs to sign off the Bill as within the competence of the parliament before it can proceed. This decision may well have given her pause for thought. The statement next week could in part be to buy time to consider the effect of recent case law, as the Equality and Human Rights Commission have urged. 

I hope that whoever makes the statement will be mindful of the commitment in 2014 to enshrine the protected characteristics of the Equality Act in the constitution of an independent Scotland and not turn this issue into one of constitutional politics. 

It is also important to understand that self-identification is not a policy ever endorsed by SNP conference nor is it one to which our manifesto committed the Government. Last year the SNP manifesto for the Scottish elections said: 

“In the next parliament we will 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. We remain committed to making necessary changes to the Gender Recognition Act that arise from this work at the earliest opportunity… We will ensure that these changes do not affect the rights or protections that women currently have under the Equality Act.' 

Having regard to the court’s decision there is more of the promised work to be done with women, equality groups, legal and human rights experts to ensure that reforms of GRA does not affect the rights or protections that women currently have under the Equality Act. 

The Equality and Human Rights Commission, the independent UK Human Rights and Equality Watchdog, have validated the concerns that I and many other women and same sex attracted people hold about the conflation of sex and gender and have asked the Scottish Government to pause and reconsider their plans for reform. These concerns centre on the potential consequences for individuals and society of extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point. The potential consequences include those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system. 

The fact that I, and others, hold these concerns does not mean that we are opposed to reform of the GRA. It just means that we oppose reform to allow anyone to get a Gender Recognition Certificate without any gate-keeping as to who may self-identify as the opposite sex from their birth sex. 

Another decision by the Inner House yesterday has muddied the waters a bit by ruling that, for the purposes of the census, transgender people can register as male or female regardless of their legal status. However, that ruling turned on the construction of the 1920 Census Act where, in contrast to the Equality Act, sex is not defined. Furthermore, unlike the Equality Act, the Census Act does not confer individual rights. 

Across civil society we see many other organisations both governmental and non-governmental pausing to reconsider the consequences of the wholesale unquestioning adoption of gender identity theory and self-identification. Many are withdrawing from Stonewall’s Diversity Champions scheme which stands accused of misrepresenting equality law to the detriment of women and same sex attracted people. Just this week another school pulled its plans for unisex toilets under pressure from parents determined that girls, particularly those entering puberty, should enjoy the safety and privacy of single sex toilets. And Police Scotland announced a review of their policy allowing alleged rapists to self-identify as women. So, I make this plea to those who lead my party and the Scottish Government. Press pause on self-identification. Reconsider. Fulfil our manifesto commitment as it was stated. 

Self-funded groups working studiously and intelligently have shown the Government’s position to be wrong. This has come after years of abuse of women online, in their workplaces, and in the public sphere. Nobody who seeks to speak up for the rights of women and same sex attracted people should have to put up with this. It is wrong. It is not the Scotland I want to live in. It is not the Scotland envisaged by the Yes movement born in the summer of 2014 with all its joy and positivity. My party and our government need to restore the normal rules of civil democratic debate and ensure proper scrutiny of policy making in relation to this matter before the bile and messy thinking bleeds into other areas of our public debate and poisons the case for independence. The Ministerial statement promised next Thursday is an opportunity to stop the rot.  

Joanna Cherry QC MP

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