The Scottish parliament will today consider final amendments to the Gender Recognition Reform Bill. The Bill, a key priority of Nicola Sturgeon’s SNP-Green government, will update the Gender Recognition Act 2004, the legislation governing the acquisition of a gender recognition certificate (GRC). Once a person obtains a GRC, ‘the law will recognise them as having all the rights and responsibilities appropriate to a person of their acquired gender’.
At present, a man who wishes the law to recognise him as a woman, or vice versa, must be at least 18 years of age and must undergo a long process based on medical evidence of gender dysphoria. The Bill will change this by jettisoning the requirement for a clinical diagnosis and putting in its place a regime of self-declaration. It will reduce the statutory waiting period from two years to three months plus a further three-month reflection period. It will also lower the age at which a person may embark on the process to 16.
The Bill is an article of faith for Nicola Sturgeon, who believes it does nothing more than simplify the GRC process and expects it will make life easier for trans people. Opponents warn that the legislation is the product of an ideological determination to introduce self-declaration at any cost. Among the costs they predict are legal challenges, implementation problems and, above all, an erosion of the rights of women and girls.
‘Never mind, someone else will figure it out’ could well be the Scottish parliament’s motto
Gender-critical feminists object on philosophical grounds: being a woman, they say, is not a feeling or an identity, but a material reality rooted in biological sex. They object to lowering the age restriction because teenage years are a time of rapid physical and social development – and teenagers are ill-prepared to make such pivotal life decisions. Others contend that removing existing safeguards in favour of self-declaration could make it easier for predators to abuse the system. Feminists see the Bill as part of a broader campaign to erase women and their interests in everything from census-taking to healthcare by sidelining sex in favour of gender identity.
There is no point in trying to cut a middle path in this debate. The two positions are so entrenched because the matter is so fundamental. Either you believe that biological sex is an insurmountable reality, or you believe that it is trumped by personal perception and preference. If you fall into the former camp, the best you can do is stress that your opposition to self-declaration is not motivated by prejudice against trans people. That you believe their rights must be upheld, that they must be protected from discrimination and violence and that you wish to see them treated with dignity, respect and love. While that might reassure many trans people, it will do you no good with ideologues motivated by bad faith and authoritarianism.
Barring some last-minute rebellion or tactical retreat, the Gender Recognition Reform Bill will pass. It will not matter that, at every step of the way, the Bill has been guided by ideology rather than evidence. It won’t matter that ministers have largely declined to engage with serious, substantive criticism. It won’t matter that all but a handful of MSPs have been lazy, feckless and negligent for most of this process, content to outsource their judgment – such as it is – to Scottish government-funded advocacy groups on one side of the issue.
It won’t matter that the cross-border implications of the Bill have gone almost entirely unscrutinised until the eleventh hour. Passports and driving licences are reserved matters? Goodness. Someone legally recognised as a man in Scotland might move to England for work, only to find the law there still deems them a woman? Never mind, someone else will figure it out. (‘Never mind, someone else will figure it out’ could be the Scottish parliament’s motto.)
In the 23 years since Holyrood opened, no piece of legislation has been handled as badly as the Gender Recognition Reform Bill. Not the Hate Crime Act. Not the Offensive Behaviour at Football Act. Not the named person legislation. It has been, from the beginning, a story of ideological capture, intellectual incuriosity, midwit talking points, ministerial naiveté and parliamentary inadequacy. With one or two honourable exceptions, if you had replaced the membership of the Scottish parliament with 129 semi-trained German Shepherds there is every chance this Bill would have undergone more rigorous scrutiny.
Holyrood is no stranger to failure, but this failure is more baneful than others. In allowing itself to become the instrument of highly ideological lobby groups, Holyrood has embraced a radical iteration of gender identity theory. Doing so will have helped foster the impression among the public that the precepts, demands and excesses of the most hardline activists are synonymous with trans people and trans rights. They are not, but the impression will surely influence public attitudes towards trans people.
Siding with hardliners has created hardliners on the other side. Had this Bill simply cut the length of time it takes to acquire a GRC while retaining the need for medical diagnosis, opponents would have struggled to get a Change.org petition going on the subject. Instead, the Scottish government has galvanised thousands of women from all political parties and none to research, organise, fundraise, lobby and protest. Say what you like about Sturgeon, but she has facilitated the biggest feminist consciousness-raising event in Scottish history.
Many on the losing side will eventually make their peace with it, but some will not. Their intransigence will only be hardened by what happens after the Bill passes and becomes settled law. No longer controversial, it won’t be subject to debate and will cease to be a dispute between two sides with valid opinions. It will go the way of same-sex marriage and laws against racial and religious hatred, looked back on as a fight for equality and fairness and niceness against knuckle-dragging bigots. There is no right side of history – but there is a losing side, and some cultural progressives are about to find themselves on it for the first time.
It didn’t have to be this way. The Gender Recognition Act could have been reformed in the spirit of moderation, subject to thorough scrutiny and improved on by intelligent debate and cautious law-making. It could have been done without so much rancour and division, without elevating the stakes to such drastic levels and without leaving so many feeling politically homeless. We are where we are because of Holyrood, its weak committees, its institutional culture, its insular focus, its susceptibility to political fashions and the quality of parliamentarian it attracts.
Suggesting that devolution has been anything other than an unalloyed triumph is sacrilege in Scottish politics. Yet the Gender Recognition Reform Bill and the process surrounding it are further reason to think a heretical thought: would any of this have happened if the Scottish parliament didn’t exist?
Comments