Gender wars: the Union’s new battle line

When Rishi Sunak had dinner with Nicola Sturgeon last week, the idea was to show he was interested in a friendly relationship: a ‘constructive dialogue’. Liz Truss had dismissed Sturgeon as an ‘attention seeker’ who was ‘best ignored’, but Sunak preferred a more positive approach. He was keen to pose for pictures afterwards. This new friendship lasted four days.

Sturgeon is now accusing Sunak of ‘a full-frontal attack on the democratically elected Scottish parliament’ because he has become the first Prime Minister in history to veto a bill passed there – the Gender Recognition Reform (Scotland) Bill. Sturgeon has put on a virtuoso performance of grievance. It’s ‘an outrage’, she says, and is using ‘one of the most marginalised groups in society’ as a ‘political weapon’. She has urged Scots of all parties to unite against Sunak’s diktat and promised to take the fight all the way to the Supreme Court.

Sturgeon may be sincere in her concern for transgender people, but she is first and foremost a Scottish Nationalist dedicated to breaking up the United Kingdom. The bill is in part a provocation, designed to portray the UK Tories as anti-Scottish bigots – and Scotland as being at the leading edge of progressive legislation in the UK.

Sunak thought long and hard before blocking the bill. He knew that it could revive the image of the Tories as the ‘nasty party’. The author of that phrase, Theresa May, advised Sunak to stand aside, to go with the flow. Don’t allow the Nats to paint the Conservatives as transphobic, she advised. Some Unionists (and Tory MSPs) went further, urging Sunak not to play into Sturgeon’s hands and give her the fight she seeks.

But Sunak was persuaded by the government legal advisers and two powerful ministers: Suella Braverman, the Home Secretary, and equalities minister Kemi Badenoch. This bill is more important than Westminster vs Holyrood, they argued; if Scotland makes it easier for people to change their legal sex, this will have huge implications for women’s safety on both sides of the border.

The bill is deeply unpopular in Scotland. Two-thirds are opposed to allowing 16-year-olds to change their legal sex without any medical intervention (merely by ‘self-ID’, as it is called). The bill staggered through after the most acrimonious debate in the Scottish parliament’s history and in the face of intense opposition from both Scottish and English feminists who say that it allows predatory men simply to declare themselves women, and in doing so gives them access to all the places set up to protect women from male violence: the refuges, shelters, separate bathrooms and separate prison cells.

No. 10 decided that taking a firm line would cast Sturgeon as a reckless and irresponsible leader, ignorant of women’s rights under UK law and uncaring of their fate. It had the extra advantage, for Sunak, of turning the spotlight on Sir Keir Starmer, who ran the risk of being set against articulate women in his own party, such as Rosie Duffield, MP for Canterbury, who was barracked by Labour and SNP MPs for supporting the veto. Starmer now says he has ‘concerns’ about the bill, especially the idea of the age of legal self-identification being lowered to 16. This has set him against his Scottish Labour party leader Anas Sarwar, who whipped MSPs into backing the bill only a month ago.

Gender recognition reform is a unique issue that cuts across both left and right and the Unionist/Nationalist divide. Many SNP supporters think the bill should never have been passed, will run a coach and horses through the UK Equality Act and is an attempt to change, by the back door, the legal definition of sex across the UK.

Yet Sturgeon insists that the bill is merely an administrative exercise, clearing away some of the bureaucratic obstacles to changing legal sex, and has no impact on women’s rights. So let’s look at what it actually does.

The Gender Recognition Reform (Scotland) Bill allows any man, even one convicted of sexual crimes (an amendment to exclude them was rejected), to become a ‘woman’ merely by declaring themselves female and living as such for three months. After this they receive a Gender Recognition Certificate, or GRC, which changes their legal sex.

The bill allows anyone, including people as young as 16, to begin the process of legally changing their sex without any medical intervention or advice. Feminist groups such as For Women Scotland claim this will put these children on a pathway to hormone drug treatment and irreversible surgery. By allowing biological men to declare themselves female, it will also place women at risk in places such as changing rooms and hospitals. LGBT groups say this is nonsense, that ‘trans women are women’ and that men don’t need a GRC to abuse women.

The UK government has rejected self-ID as unsafe for women and girls. This means that GRCs secured in Scotland would not be valid in England. Currently, across the UK, people who wish to change legal sex must be over 18, have a medical diagnosis of gender dysphoria and live in their new gender for two years first. However, if the bill were to become law, Scotland and England would have entirely different legal definitions of sex – which many critics of the changes argue is totally unworkable. It would make it extremely difficult for women’s groups on both sides of the border to exclude male-bodied trans women from single-sex spaces such as women’s prisons, domestic abuse refuges or support groups for victims of sexual violence. Yet they have a right to do so under the UK-wide Equality Act 2010. This says women’s groups are allowed to exclude trans women as a ‘proportionate means of achieving a legitimate aim’.

There is, at the root of the self-ID issue, a fatal confusion between sex and gender, between biological sex and gender identity. In Scotland the legal category of ‘woman’ has been altered to include men in a landmark ruling in the country’s highest court, the Court of Session, last month. Trans women are women in Scotland ‘for all purposes’.

This means they cannot, for example, be excluded from women’s quotas on public boards. Nor can male-bodied prisoners be denied access to women’s prisons if they self-ID (and return to their original sex upon release, as has reportedly happened recently). Women in Scotland risk being guilty of discrimination if they refuse to be treated by a male-bodied nurse or doctor in possession of a GRC.

Suella Braverman claims Sturgeon’s legislation will create ‘a two-tier system’ which is ‘unworkable’. The Home Secretary says that trans women are not women: they are biological males who have assumed an identity that is not concurrent with their sex. The UK government’s view is sex takes precedence over gender and that schools, hospitals and public bodies have an absolute right to exclude trans women from women’s spaces. Braverman has condemned the introduction of gender-neutral toilets and the inclusion of male-bodied trans women in female sports.

Lord Keen, a former Advocate General for Scotland, has argued: ‘It would not only be impractical but constitutionally improper for the UK government to permit a devolved legislature to enact a provision with a material impact on the operation of the law throughout the UK.’ If that sounds familiar, it is very close to the Supreme Court ruling last year that the Scottish parliament was ultra vires – not within its powers – in passing an act demanding a repeat referendum
on independence.

That ruling, though hardly unexpected, was a blow to Sturgeon’s campaign to hold a plebiscite in October this year. She tried to spin it as an English court overruling the will of the Scottish parliament – and she may be hoping to make this claim again over her gender bill which will almost certainly go to judicial review. She should be careful, because this isn’t just a legal matter but a divisive political one.

The Scottish government suffered its first significant parliamentary rebellion in 15 years over this issue, complete with the resignation of community safety minister Ash Regan. Many ordinary SNP members struggle to understand Sturgeon’s enthusiasm for promoting a ‘woke’ issue that has
little obviously to do with independence. Alex Salmond’s breakaway Alba party has also embraced the chance to outmanoeuvre Sturgeon. The ex-SNP leader has recruited Lynne Anderson, former SNP equalities convener, to Alba, along with Caroline McAllister, former SNP women’s convener. Both were elected by the SNP membership, but then sidelined by Sturgeon because of their opposition to self-ID – in much the same way as Joanna Cherry KC MP was demoted from her post as shadow home affairs spokesman in Westminster, though she remains in the SNP.

Vociferous Scottish feminist groups such as Women Won’t Wheesht (i.e. stay quiet) and For Women Scotland are siding with Sunak, as is the influential legal cooperative Murray Blackburn Mackenzie. MBM recently challenged Police Scotland’s decision to record offenders’ gender identities rather than their biological sex, thus introducing women rapists into crime statistics. Wings Over Scotland, the most widely read nationalist blog, is also fanning the flames. Banned from Twitter three years ago, it has been reinstated by Elon Musk and is now loudly backing the UK Prime Minister against the SNP leader – a once almost unimaginable role reversal.

This campaign is spreading to England. Women’s groups and the legions on Mumsnet have been organising against the presence of natal men in changing rooms. Prominent lesbian feminists, such as the author Julie Bindel, are being given more airtime on the BBC.

Sturgeon is proud of her image as a ‘progressive’ feminist Nationalist, but she faces a new Unionist coalition of women (and men) on both sides of the border. Self-ID is realigning politics on left and right. Which has left many Scottish Nationalists asking: why did she begin this battle?

Insiders suspect Sturgeon’s real motivation is personal: a kind of career virtue-signalling, calculated to help her secure a post as an LGBT champion in an international body such as the United Nations. It is an open secret that she is already planning her career after politics. The Gender Recognition Reform Bill may bring about that move rather sooner than she thinks.