Via Fair Play to Women on FB
Iain Macwhirter in the Times:
Spare a thought this festive season for the mild-mannered Scottish secretary Alister Jack, who finds himself in the eye of a transgender storm. Not a comfortable place for a “cis-het” politician, to use trans argot.
In a couple of weeks he must decide whether to block the Gender Recognition Reform (Scotland) Act, passed after the longest and most acrimonious parliamentary row Holyrood has seen since its creation in 1999.
On the face of it, Jack has every reason to refuse royal assent for legislation that will adversely impact on the law as it is applied in the rest of the UK. That is what section 35 of the Scotland Act 1998 is there for.
Under the new act, Scots can now change their legal sex merely by making a declaration and living in their new gender for three months. But in England, self-identification of gender has been rejected by the UK government as incompatible with the 2010 Equality Act, which protects women’s sex-based rights.
South of the border you can’t become legally female just by putting on a dress. A transgender person requires a medical diagnosis of gender dysphoria and they must live in their new sex for two years before convincing a panel of experts to change their birth certificate.
What this new gender divide means is that, as things stand, people will change their sex when they cross the border. This is because a gender recognition certificate (GRC) secured in Scotland will not be valid in England. That is clearly absurd and, contrary to popular belief, the law cannot be based on an absurdity. Either the UK adopts self-ID by the back door or Scotland doesn’t. There is no middle way. You couldn’t have gender police lifting skirts or kilts and inspecting GRCs at Carlisle.
It is far from clear, however, that this battered and bruised Tory government has the stomach for the fight. To call it a minefield is an insult to concealed explosives. Nicola Sturgeon may be sincere in her support for trans rights, but she is also a nationalist politician dedicated to breaking up the UK.
Her act is in part a provocation, a piece of constitutional theatre, designed to make Westminster appear to ride roughshod over the democratic will of Holyrood — as it did over the “advisory” referendum on independence. It also means painting the English Tory government as transphobic. Trans migration to “liberal Scotland” is already being planned.
Many English Conservatives, such as the former prime minister Theresa May, are urging Jack — or rather Rishi Sunak, who will make the final decision — to duck this battle. After all, May supported self-ID when in Downing Street and Jack was one of her ministers. Even hyper-hetero Boris Johnson once supported making it easier to change gender.
The LGBT-friendly civil service will no doubt be advising Jack to relent on the grounds that the UK already accepts GRCs from countries including Ireland, which has something similar to self-ID. Surely, minister, they’ll say, the government should take the line of least resistance.
Except that there is a line of considerable resistance here from the gender stakeholders everyone seems to forget: women. They make up half the population and have yet to be properly consulted. It is not at all clear that women voters in England are prepared to accept that bearded men with male genitalia are women just because they say they are. Or that it’s OK for 16-year-old girls to go on extended holidays in Scotland and come back as men.
Many women are making clear that they already resent the presence of male-bodied trans women in changing rooms and other single-sex spaces. In Scotland even convicted sex offenders can now change their sex and demand to be housed in women’s jails — a practice that not only places female prisoners at risk but also skews crime statistics.
Sturgeon has disingenuously claimed that gender reform is merely an administrative exercise and poses no threat to single-sex spaces. Yet she must know that this is not the case. Women, or people with cervixes as the Scottish NHS sometimes calls them, are no longer defined by their biological sex in Scotland. This was made clear by Lady Haldane’s landmark ruling this month in Scotland’s highest court.
Trans women are now women, in Scotland at least, “for all purposes”. The legal category of “woman” has been changed to include those born male. They cannot be excluded from women’s spaces on bodies such as public boards.
Gender reform has been hugely controversial and will be so in England if the government caves in.
Already we see high-profile English court cases, where gender-critical women such as Maya Forstater and Allison Bailey have fought for and won the right to declare that trans women are not women. Feminist groups including Sex Matters and the LGB Alliance refuse to relinquish their sexual identity to accommodate men’s feelings. The equalities minister Kemi Badenoch has made clear that she believes self-ID poses a threat to the safety of women and girls. Most voters bear no ill will to trans people but do not believe that humans can change sex.
This is an increasingly vocal majority. The UK government must surely avoid allowing Sturgeon to dictate who is and is not allowed to be a woman in England.
There is only one place that this issue can be resolved and that is in the Supreme Court. The UK government should withhold royal assent to the gender reform act and allow it to go for judicial review. The judges may be getting tired of adjudicating on constitutional disputes between Holyrood and Westminster, but that is their job. Get to it.
Spare a thought this festive season for the mild-mannered Scottish secretary Alister Jack, who finds himself in the eye of a transgender storm. Not a comfortabl
www.thetimes.co.uk
