Don’t worry. This is not about trans rights or what a woman is. It is about Scottish governance, the process of Scottish legislation and the consequences of relying on small parties for votes. Above all, it’s about whether Ms Sturgeon is a straight politician as she likes to claim, whether she is being economical with the truth, whether she has misled Holyrood. Like pretty much all politics these days, it’s about integrity.
Ms Sturgeon and her Ministers have repeatedly said – both in interviews and, crucially, to MSPs in Holyrood – that the Gender Recognition Reform Bill (“the GRR Bill”) will not impact women’s rights because, while it allows a person to change gender, it does not change their sex under the Equality Act 2010. Therefore, it will not impact the exemptions contained in it. (These allow, in some circumstances, service providers to discriminate on the grounds of sex in order to maintain single-sex spaces, schools or sport.) This has been a significant concern expressed by a number of women’s groups and some in the SNP, including Ash Regan, who was until her recent resignation (over concerns she had about the Bill), the SNP’s Minister for Community Safety (and 6 other abstaining MSPs).
So, if one believes Ms Sturgeon, those concerned by the GRR Bill are wrong or exaggerating. There is nothing to worry about. Well, thank goodness. Panic over.
Alas, this is not correct. Why? Well, because the Scottish government led by the same Ms Sturgeon who gave these reassurances has this last week been arguing in court the complete opposite. It is stating that a GRC does change a person’s sex for all purposes, including under the Equality Act. How so? Let’s rewind to earlier in the year, when ForWomenScotland won a court ruling that the government’s definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 was unlawful because outside the competence of the Scottish government. It could only use the definition of “woman” in the Equality Act not expand it to include men living as women (but not, oddly, women living as men), as the Scottish government was seeking to do. The court ordered the government to remove the unlawful definition. It has not done so but has come up with a revised version which is again being challenged. As set out here, the Scottish government is arguing that a GRC changes the meaning of “sex” and “woman” in the Equality Act to include biological males. This would have the legal consequence raised by women’s groups – of rendering the single sex exemptions meaningless and ineffective.
We have to assume that the position put before the court is what the Scottish government believes and wants. If it wins, it will have a significant impact on the relationship between the GRR Bill and the Equality Act, something which you might think would be highly relevant to Holyrood’s deliberations. But it is not something which they are being allowed to consider or even being told about.
Confused? Well you might be. Sturgeon has said one thing to Holyrood and to women and her lawyers are saying the opposite to a court. So why is Sturgeon lying (or, if you wish, use your own politer euphemism) to MSPs and others?
This is not the only problem with how this legislation is being brought forward.
- It is not a manifesto commitment (again contrary to what Ms Sturgeon has said). It is apparently being demanded by the Greens in return for their support for the SNP. Quite why, at a time when we are being told that climate change is one of the top – if not the top issue of the day – this is the issue the Greens are pushing is interesting.
- Opinion polls show that its main changes do not have public support.
- Despite this, it is apparently so vitally important that it must be pushed through at breakneck speed with little scrutiny but utterly unimportant when women want to have their concerns about it heard. The committee stage is meant to be concluded this Tuesday with 150 tabled amendments ignored. One – which would have prevented convicted sex offenders from changing their identity using the Bill’s freedoms – was rejected by the SNP, Labour and the Greens. (Remember this when they next opine on the importance of preventing violence against women and girls.)
- It has led to the biggest rebellion within the SNP since Ms Sturgeon took over: one Minister lost and others abstaining. Ms Sturgeon claimed that she had no idea Ms Regan had reservations. A few days later she had to admit that this too was incorrect. She did know and had been repeatedly told.
- There will now be a long legal battle in the courts. The judicial review is being heard by the Lower Courts. Its decision (if contrary to it) will not overturn the decision of the higher court. So there will likely be appeals which will take time to resolve.
- The Scottish government has also accepted that there will be challenges to the GRR Bill in the courts and that this will help resolve any issues with it. This is a curiously negligent and casual approach to law-making, unless of course speed and having a fight with judges is your objective.
- And, finally, it risks a legal fight over whether the Scottish government has the power to pass this legislation at all, because “equal opportunities” are a reserved matter for the UK government. The interaction of the GRR Bill and the Equality Act, the effect of the current legal action and what they mean for groups with the protected characteristics are all as yet unclear. Perhaps this is why Ms Sturgeon is being so Janus-faced. She gets another opportunity to blame the English for whatever mess results.
It is all, dare one say it, very reminiscent of the UK approach to government – badly drafted legislation (unnecessary speed, no scrutiny), being beholden to tiny parties, blaming internal and external enemies, picking fights with judges and telling different groups what they want to hear (regardless of truth and consistency) – so amply demonstrated by the Tories in the last few years. In this, at least, we are in truth very much a united kingdom.