Here's why I couldn't support gender reform bill

  • First published in : Visit Website
  • First published on: 23rd Dec 2022

ON Wednesday I joined feminists protesting against the Gender Recognition Reform Bill outside Holyrood and addressed the rally. I did so to support SNP MSP colleagues who share my deep reservations about the system of self-identification proposed in the bill. I also wanted to show my support for all the brave women and men who have dared to express their heartfelt, rational and genuine concerns about the unintended consequences of this legislation for the rights of women, girls and LGB people.

Traditionally, the SNP have allowed parliamentarians a free vote on matters of conscience. I cleared my attendance at the rally with the Westminster SNP group chief whip on that basis. Sadly, my MSP colleagues were not afforded the same leeway. Nevertheless, some of them found the courage to rebel and I applaud them for doing so, particularly given the personal and professional cost to them.

Like them, I am not a transphobe nor a bigot. I am a lesbian, a feminist and someone who has a long-standing record both as a lawyer and a politician for standing up for equality and human rights. When I was a young woman I openly campaigned against the homophobia of the Section 2a (Section 28) legislation while some of the politicians now desperately virtue signalling over this legislation absented themselves from the fight or sat on the fence.

Human rights are universal and at present women, men, LGB and transgender people across the UK enjoy the same human rights, the same equal rights and protection from discrimination thanks to the Human Rights Act and the Equality Act. It has been said repeatedly that the GRR Bill gives no new rights to trans people. That is correct in so far as the bill says nothing about trans people. The word “trans” is not mentioned in the bill and therefore undefined.

However, the bill does give a new right to anyone to change their legal sex with little or no meaningful safeguards. Thus, the bill will allow any man to declare himself a woman and to gain the legal status of woman for all or most purposes after three months of living as a woman. What it means to “live as a woman” is also left undefined. I believe this new right could pose a threat to women’s rights to safety, privacy and dignity. It could also mean that lesbians could be forced to accept men into lesbian clubs, groups and dating websites. In fact, all of this is already happening as a result of de facto acceptance of self-identification.

That is why I am opposed to the bill. Contrary to what some may say, I am not a serial rebel. Unlike some of my MP colleagues I have never broken the SNP whip at Westminster. I’m proud that some of the ideas I have championed over the years have become SNP policy and helped my party to win elections. I was a leading voice in the fight against Brexit. I led the court action that stopped Boris Johnson’s unlawful prorogation of the UK Parliament and I championed the need for a plan B including a Holyrood referendum bill if the Tories refused to grant a Section 30 order for a second indyref.

But I cannot support this bill. In maintaining that position, I am not breaking party policy. The SNP have never endorsed at our conference a system of self-ID, and it was not what was promised in the manifesto for the 2021 election. What the manifesto promised was to improve and simplify the process by which trans people may obtain legal recognition so that the trauma associated with that process was reduced. It also promised to work with women’s groups and to address any concerns about the reform through informed and respectful discussion. To be frank, I do not think this has happened.

Many of the concerns which I hold about the lack of safeguards in the bill were endorsed by Reem Alsalem, the UN Special Rapporteur on Violence against Women and Girls when she gave evidence to the Holyrood bill committee on Monday evening. She knows what she is talking about. It was good to hear her rebuke MSPs who speak of culture wars and accuse women with concerns of engaging in hate speech. She reminded them that what is at issue here are fundamental human rights and how we can all co-exist in a dignified way.

She also debunked the myth that there is no evidence of the abuse of systems of self-identification in other countries. She pointed out that some of these countries have safeguards in their legislation not present in the Scottish bill and others no longer collect sex disaggregated data leading to confusing results, for example when a male sex offender has changed his legal sex to female but continues to commit sexual crimes while in prison, his crimes are recorded as those of a woman not a man self-identifying as a woman. She also emphasised the lack of impact assessments as well as proper data analysis and that she has received evidence of women self-excluding from what were once women’s spaces because of systems of self-ID in other countries.

Many proponents of the bill have claimed there is no evidence that sexually abusive men will abuse self-identification systems to gain access to vulnerable women. Google the names Barbie Kardashian and Katie Dolatowski and you will see that these assertions are simply wrong.

According to international human rights law there is no need for Scotland to introduce a system of self-identification. The system of gender recognition which we currently have satisfies what is required by the case law of European Court of Human Rights. Furthermore, the court has recognised that “stringent” procedures aimed at verifying the underlying motivation for a change of legal identity are justified.

Reem Alsalem believes that a recent Scottish court judgment by Lady Haldane means the bill will impact on rights protected by the Equality Act. She was clear that the bill needs to be clarified in that respect and that it needs more inbuilt safeguards.

Sometimes rights conflict. Courts have to deal with this all the time. I sit on the advisory board of a NFP organisation called Sex Matters. We agree that trans rights are human rights, but we have also said this:

“In some situations, conflicts of rights and interests may be a zero-sum game.

“If the rules governing single-sex spaces are changed so that some members of the opposite sex are able to enter, those spaces become mixed-sex, and many women will self-exclude.

“If males who identify as women are housed in women’s prisons, women will feel and be unsafe. If males are allowed to play in women’s sport, then fairness and safety for women are destroyed.

“In this sense, rights are pie – and compromises that destroy the human rights of one group are unfair. Solutions are needed that respect everyone’s rights ...”

I don’t believe Holyrood has as yet found a solution to reforming the process of gender recognition that respects everyone’s rights. I believe that women’s rights are being sacrificed, I believe that is wrong and I believe it is my duty to say so.

Joanna Cherry KC MP

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