The first minister of Scotland, Humza Yousaf, has a painful choice following his latest defeat in the Court of Session today over the Gender Recognition Reform (Scotland) Bill. Yousaf had challenged the UK government’s use of Section 35 to block the gender bill because it could undermine UK-wide protections for women.
This futile exercise has already cost £230,000 in costs, and public patience is wearing thin on a bill that is opposed by two out of three voters in Scotland
Now either Yousaf perseveres with this profoundly unpopular legislation on Self-ID for trans people, or he abandons his coalition arrangement with the Scottish Green party. Under the terms of the 2021 Bute House agreement with the Scottish Greens, he must back the stalled gender bill all the way to the UK Supreme Court if necessary. The Green party leader, Patrick Harvie, says that securing the GRR bill is his ‘red line’.
This would of course be folly. There is no way in which the UK Supreme Court, under Lord Reed, is likely to overturn this ruling by Scotland’s highest civil court. This futile exercise has already cost £230,000 in costs, and public patience is wearing thin on a bill that is opposed by two out of three voters in Scotland. It is time to end this farce which has divided the Scottish National party, and drained the energies of the Scottish government, for far too long.
The bill effectively died in January when it emerged that a transgender double rapist, Isla Bryson, AKA Adam Graham, had been placed on remand at Cornton Vale women’s prison. It emerged that other male-bodied trans sex offenders had been allowed to enter women’s prisons under the Scottish Prison Service’s policy of recognising Self-ID.
In the UK, individuals can change their legal gender with a diagnosis of gender dysphoria and after living in their new gender for two years. Under Nicola Sturgeon’s Gender Recognition Reform Bill, these protections were to be removed or downgraded. Sixteen-year-olds would be able to change their legal sex without any diagnosis at all, by making a declaration that they wished to change their birth certificates and live as another sex.
Self-ID is not being introduced south of the border. Rishi Sunak has repeatedly made clear that he regards biology as the basis of gender and agrees with the novelist, JK Rowling, that allowing people to change sex by declaration would endanger women by allowing predatory men to access women’s spaces. Nicola Sturgeon said there was no evidence of this, despite the presence of male-bodied sex offenders in Scottish jails. After a public outcry about ‘trans rapists’, Bryson was moved to a male jail on 26 January 2023, but Sturgeon still could not bring herself to say that he was a man. She resigned as first minister the next month.
In the meantime, the Scottish Secretary, Alister Jack, had halted the Gender Recognition Scotland Bill under Section 35 of the Scotland Act. Nicola Sturgeon called this a ‘full frontal assault’ on devolution. Section 35 is, however, an integral part of devolution legislation. The UK has a right to withhold Royal Assent to acts of the Holyrood parliament – as Lady Haldane appears to accept in today’s judgment – if they are incompatible with reserved matters. Section 35 applies when the operation of a bill passed by Holyrood is likely to conflict with, or have impact on, the operation of UK-wide law. The Equality Act 2010 applies in Scotland as well as England. The UK government argued that introducing Self-ID in Scotland would undermine women’s sex-based rights under the act.
The problem is essentially one of legislative continuity. If the law was passed, and Self-ID not introduced in England, then some transgender women would have to legally change sex at the border. This is because the Gender Recognition Certificates secured under Self-ID would not be recognised in England. This is absurd – and the law should not tolerate absurdities.
Which leaves Humza Yousaf in a very tight spot. He will now come under pressure to abandon Self-ID and withdraw the bill, or change it. His wisest course would be to seek cross party agreement on resubmitting the Gender Recognition Reform Bill but with explicit safeguards for women’s single sex spaces This could allow it to conform to UK law.
But it would emphatically not be accepted by the SNP’s coalition partners, the Greens. Their leader, Patrick Harvie, insists that ‘transwomen are women’, quite literally. The Scottish Green MSP Maggie Chapman even said she would like to ‘explore’ children as young as eight being able to legally change their gender. The Scottish public beg to differ and Humza Yousaf should listen to them, even if it means the end of the SNP’s stormy affair with the Scottish Greens.
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