SCOTLAND NEEDS GENDER RECOGNITION REFORM, NOT A 'WINNER TAKES ALL' POLITICAL CRISIS
Nicola Sturgeon and Patrick Harvie have turned Gender Reform into a proxy fight where the very legitimacy of whole groups of people in our society is at stake. This will not end well.
Gender Recognition Act reform counts as one of the most contentious reforms brought before the Scottish Parliament in the devolutionary era. At its core the issue ought to try to find a way to balance competing rights claims, but chronic mishandling and railroading of special interest by the Scottish Government has left everyone losing out.
Gender Recognition Act (GRA): what it is and why we have it
The Gender Recognition Act (GRA) is the 2004 legislation which governs how trans people obtain legal recognition of their gender identity. GRA was designed to allow trans people to have their gender identity recognised in law, provided they satisfied a diagnosis for gender dysphoria. In short, it allows people who have gender dysphoria to change their legal gender.
The GRA came about following the UK government’s defeat at the European Court of Human Rights (ECHR). The ECHR case ‘Christine Goodwin vs The United Kingdom’1 is likely one of the most important legal cases relating to UK law and the ECHR you have never heard about. The verdict was decided on July 11th 2002, and is significant for a few reasons. Firstly, it was a precedent setting legal decision. It directly led to a modification of UK law in the form of the GRA (2004). Secondly, it expressly recognized the right of transsexuals to marry and to have their new identity recognized. Thirdly, it overturned a previous norm within the ECHR regarding the UK context. Previous to ‘Goodwin vs UK’, the ECHR court had consistently held that the failure to amend the birth certificate was not a large enough interference; but this case overturned this view.
The Goodwin case at the ECHR exposed the myriad unfairness someone who is genuinely gender dysphoric faces in everyday working life. The applicant outlined some of the ways she faced discrimination in the UK at the time.
Arguing she had been unable to successfully pursue sexual harassment claims at Industrial Tribunals due to the fact she was legally male; ultimately being dismissed from employment. The applicant also argued that due to the Department of Social Security, UK (DSS) refusing to allocate her a new national insurance number, her new employer was able to trace back her gender identity and subsequently faced fresh problems. Being refused the state retirement at 60 (at the time the retirement age for women in the UK), all government records continued to register her as male even after gender reassignment.
The UK response was to create the GRA (2004). In doing so, the UK for the first time began to legally recognise the reality of the discrimination faced by those with gender dysphoria and attempt to remedy it.
The origins of Gender Recognition Reform (GRR)
The origins for the Scottish Government’s current push to amend the 2004 GRA dates back to 2016 when the SNP (and all parties at the time) committed to reforming the GRA. The GRA had established those applying to legally change their gender require a medical diagnosis with gender dysphoria, had to wait two years (living in their claimed gender identity) and set the legal age at 18. The consensus view among all the parties elected in 2016 was that these represented too unfair and high a bar for those with gender dysphoria and that modifications should be made.
The view that changes were required was reinforced when the European Commission released in June 2020 a report placing the United Kingdom’s GRA second from bottom category. The report found the UK’s GRA represented "intrusive medical requirements"2, lagging behind international human rights standards.
Resulting from what had been assumed as a clear political consensus on a need for modifications to the GRA, the Scottish Government began its legislative push for reform.
Nicola Sturgeon’s administration has decided to push for a radical alteration to the GRA. The SNP-‘Green’ coalition government has revealed it intends to:
i] abolish the requirement for a medical diagnosis with gender dysphoria in favour of self-identification
ii] reduce the waiting time from two years living as one gender identity to just six months
iii] cut the age from 18 to 16 (although there are signs the government might compromise on proposal)
But the Scottish Government has been operating on the assumption that their proposed changes to the GRA represented an easy win. The SNP-‘Green’ likely assumed their GRR proposals would be chalked up as an easy win; an idea no doubt reinforced by the the European Commission report. But the SNP-‘Green’ coalition have made a number of serious errors.
They have confused a wider political consensus on a need for reform with an assumption that this translates to agreement with their proposed changes. After all, I support reforming the GRA, but I certainly do not support aspects of what this Scottish Government is proposing to modify.
But more serious still, the ruling Scottish National Party has overseen a policy process which is structurally and fundamentally flawed. The GRR Nicola Sturgeon is pushing through Holyrood is born out of an approach to policy processes regarding gender and sex which are completely undermined by special interest capture.
Finally, this refusal to listen to the views of others is manifested itself in Nicola Sturgeon refusing to even grant her own MSPs a free vote on the GRR legislation; thus resulting in ministerial resignation and major backbench rebellion.
Bad policy making: A Scottish Government only seeking voices that reaffirm its own views
On March 3rd of this year Social Justice Secretary Shona Robison gave the Holyrood Parliament an update on the government’s GRR legislation, calling for a respectful debate and pledging the Scottish Government would listen to all voices.
"I want to be clear: I will listen to the views of everyone; parliamentarians in this chamber, and those outwith, in a respectful manner throughout the passage of the Bill. I urge everyone to do the same”3
At the time I welcomed the words and earnestly wished them to have been true, but I had my doubts. Prior Ms Robison’s March statement there was already a clear body of evidence indicating that the Scottish Government had been legislating regarding on gender questions from a highly partisan view resulting in policy processes being subject to policy capture. And looking at where we stand now, the call for debate in a ‘respectful’ manner seems as far away as ever.
The Scottish Government had a clear political consensus at their backs acknowledging a need to modify the existing GRA. But they squandered that, but not on the grounds of incompetence; that I could perhaps understand if not forgive. Instead the First Minister has to my mind deliberately overseen the displacement of public interest in favour of special interests; furthermore this seems to have been a central goal throughout the GRR process her government has presided over.
In June this year I wrote an article for Think Scotland putting into words why I had seriously doubted Ms Robison’s words about listening “to the views of everyone”. In my piece I outlined in forensic detail the numerous ways in which the Scottish Government had been irredeemably compromised by policy capture by special interests on questions of gender in policy-making.
One example of this is to be found in the flawed approach shown in the selection of witnesses to give evidence before committees such as the Scottish Parliament’s Equalities, Human Rights and Civil Justice (EHRCJ) committee.
When interviewing Susan Smith, co-director of For Woman Scotland she explained to me that
“the bias shown in the selection of witnesses to give evidence [to the EHRCJ] is a damning indictment of how skewed the process is, and how the Committee is failing to do their job. Which is to examine the evidence and to give weight equally to the evidence they received.”
And Ms Smith is not wrong. When examining her claim I discovered that when calling witnesses before the EHRCJ, the committee clearly demonstrated bias which undercuts Scottish Government claims to be intent on listening “to the views of everyone”.
The EHRCJ was the Committee tasked with taking evidence regarding prisons and data. It turns out that in regards to this data aspect, the Committee only heard from two witnesses. Both of whom are on record supporting replacing data on birth sex with data on self-declared* gender identity.
*self-declared gender identity is the SNP proposal whereby the GRA requirement for a medical diagnosis with gender dysphoria will be abolished. In effect you simply declare your own gender and that’s then legally your gender. It is one of their more controversial GRR changes proposed
Indeed, one of the two witnesses giving evidence to the Committee was Dr Kevin Guyan, author of Queer Data, who works as a Research Fellow on the ORA-funded GEP Analysis study into gender equality policies in film. In short, his area of expertise indicates that he does not study population data in the way other experts will study population data.
The persistence of the Scottish Government in treating Dr Guyan as an expert in data collection is frankly inexplicable. Especially given experts such as Professor Alice Sullivan, Professor of Sociology at University College London and expert social statisticians who have spoken out in favour of accurate data collection on sex alongside gender identity were not called.
If Holyrood committees are giving weight and favour to only those voices who support the SNP/Green views on gender and birth sex then something is clearly fundamentally wrong. All the more-so if one of the witnesses being called is presented as holding an expertise which he likely cannot claim to fully have.
But as I dug deeper, I discovered other examples indicating that the Scottish Government’s approach to gender is being effectively written by special interest groups, at the expense of a properly balanced policy making approach.
In September 2019 the Scottish Parliament’s Culture, Tourism, Europe and External Affairs (CTEEA) Committee received a letter by Dr Kevin Guyan and co-signed by 53 academics. It urged the Committee to allow for census sex question with guidance that directs people to respond based on their self-identified gender. But when you read their letter, you quickly realise that precious few of the academic signatories indicate details of their area of academic expertise.
Whereas a December 2019 a letter was submitted by no-fewer than 80 experts in social statistics and users of population level data, including some of the UK’s leading social scientists and ten Fellows of the British Academy. Their letter concludes with the following,
“As experts in social statistics and users of population level data, we call on the UK’s census authorities to retain the integrity of the category of sex, and not to conflate this with gender identity”4
All of the signatories to this letter gave information on their area of academic expertise. And that actually matters, since it establishes that they all derive from professional academic backgrounds relevant to a debate about the validity and reliability of population data. Yet the Scottish Government prioritised the evidence that confirms their view.
When I asked the women’s advocacy group For Woman Scotland’s co-leader Susan Smith about this, she informed me this suggests “either an extraordinary ignorance or extraordinary bias on the part of the Scottish Government”.
Hardly confidence building is it Ms Robison? Little wonder I doubted her words back in March. A government cannot claim to be engaging in a listening exercise while overseeing policy approaches to legislation which demonstrate a wilful bias in favour of one view at the expense of another.
Be under no illusions, this Scottish Government has approached questions of gender and birth sex from a highly partisan viewpoint, and has displaced the public interest in favour of special interests. If a government approaches policy-making from a stance where it will only listen to, and give priority to, the voices that reaffirms its pre-existing view it destroys the credibility of any subsequent legislation which flows out from the policy making processes.
As Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie have made clear in the past, the Holyrood administration has placed emphasis on voices which reinforce its own assumptions, even when this meant activists masquerade as having equivilent levels of expertise as real experts,
“Instead, the Scottish Government has given precedence to assertions put forward by activists who are not close to having an equivalent level of expertise in dealing with population data”5
Beyond these examples, there have also been legal cases demonstrating the Scottish Government as far back as 2018 has been seeking to legislatively redefine ‘woman’, without adequate policy processes of consultation and engagement, thereby leading to a defeat in the courts.
Just look at the February 18th 2022 ‘For Women Scotland vs Lord Advocate and Scottish Ministers’6. This case established that under the Equalities Act 2010 the protected characteristic of ‘sex’ refers to biological males and females and is distinct and separate from gender reassignment.
This case established that the Scottish Government legislation (Gender Representation on Public Boards (Scotland) Act 2018) which – laudably – aimed at positive action measures aimed at increasing the percentage to 50% of women serving as non-executive members on Scottish public boards. But the court found that the Scottish Government’s redefinition of ‘woman’ “conflates and confuses two separate and distinct protected characteristics”. Furthermore, the government could have sought to enhance the opportunities for woman (as defined by biological sex) and “for any other protected characteristic, including that of gender reassignment. That is not what they have done.”
A need to rediscover the balance between competing rights claims
Looking forward what Scotland badly needs is a step back from the culture-war precipice this administration is railroading Scotland toward. Yes the GRA needs reform, but a bloody-minded push for only the changes that the special interest groups who have Nicola Sturgeon’s ear serves nobody.
Policy processes attempting to grapple with the serious questions of gender, birth sex, data collection, and the clashing rights claims of trans and biological females has all been undercut. No side or group with a stake in the outcome of the Gender Recognition Act (Scotland) Bill has been well served by the policy processes overseen by this Scottish Government. Nor can wider Scottish society hope for a nuanced and moderate debate regarding data collection. Thanks to policy capture and railroading presided over by this Scottish Government, we are all losing out.
When looking at the Scottish Government’s GRR proposals I cannot help but lack trust in it. That’s what happens when governments insist that decisions over policies are repeatedly directed away from the public interest towards a specific interest. It destroys confidence in any outcome which results.
Scotland badly needs to reaffirm two things: GRA needs to be reformed, the status quo is not viable. But at the same time, we are dealing with an issue of competing rights claims in a liberal democracy clashing; regarding the legitimate calls by trans people for reform and (biological) women to protect their rights and very existence as an objectively (as opposed to subjectively) defined group.
The GRA (2004) needs reform. A two year wait can be reduced, and should be. But self-declared gender identity instead of medical diagnoses of gender dysphoria represent a serious risk in multiple dimensions such as data collection (and thereby future policy making where data on for example census or prisons is required). It also underscores a core challenge to the whole concept of ‘womanhood’; after all if I can simply hold up my hand and self-declare myself a woman and gender is merely a social construct, where does this leave the very concept of a ‘woman’?
It becomes clear that what needs to happen is a middle-way. But with Nicola Sturgeon insisting that the views of women disagreeing with her GRR proposals are “not valid”, this is sadly highly unlikely. Everyone loses out…except maybe the First Minister who will finally get some sort of major legislative change to point to after she retires (after all baby boxes won’t cut it).
Currently the GRR proposal have morphed into a high-stakes ‘winner takes all’ political crisis. What Scotland needs is a mature legislative solution being presented to reform GRA, and respect the competing rights claims of all involved. Instead Ms Sturgeon and Patrick Harvie have turned it into a proxy fight where the very legitimacy of whole groups of people in our society is at stake. This will not end well.
CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM (Application no. 28957/95), JUDGEMENT: STRASBOURG 11 July 2002, https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-60596%22]}
European Commission (2020), ‘Legal gender recognition in the EU: The journeys of trans people towards full equality’, page 116 (130 on pdf view), https://ec.europa.eu/info/sites/default/files/legal_gender_recognition_in_the_eu_the_journeys_of_trans_people_towards_full_equality_sept_en.pdf
Davies, Rachel (2022, 5 Oct), ‘GRA Scotland: What is the Gender Recognition Act and what GRA reform is being proposed in Scotland?’, The Scotsman, https://www.scotsman.com/news/national/gra-scotland-what-is-the-gender-recognition-act-and-what-gra-reform-is-being-proposed-in-scotland-3463937
https://archive2021.parliament.scot/S5_European/General%20Documents/CTEEA_2019.12.18_Sullivan.pdf
https://murrayblackburnmackenzie.org/2020/02/24/a-tale-of-two-letters-whose-views-count/
https://www.judiciary.scot/home/sentences-judgments/judgments/2022/02/18/for-women-scotland-v-the-la-the-scottish-ministers#:~:text=The%20Equality%20Act%202010%20regulates,Scotland%20as%20a%20reserved%20matter.&text=The%20judge%20at%20first%20instance,benefit%20from%20the%20positive%20measure.