You would think Nicola Sturgeon had enough on her hands, what with overseeing a sluggish vaccine rollout, being under investigation by the Scottish parliament and hosting her own daily TV show on the BBC during the pandemic. Yet the leader of Scotland’s nationalist party has waded into the debate on trans rights and gender identity in a video published on Twitter. Sturgeon said:
‘I don’t have much time for anything other than the fight against Covid right now but on some days silence is not an option. This message wasn’t planned, it’s not scripted; I haven’t consulted with armies of advisers. That might be obvious. But what you’re about to hear comes from my heart.
‘Over the course of the day I’ve heard reports of mainly young people, in significant numbers, leaving the SNP. I know many of you personally, I consider you friends, I’ve campaigned alongside you. You are a credit to our party and our country.
‘It grieves me deeply that you’ve reached this conclusion after much soul-searching because you consider, at this stage, the SNP not to be a safe, tolerant or welcoming place for trans people. That’s not acceptable to me. As SNP leader I will do everything I can to change that impression and to persuade all of you that the SNP is your party and that you should come home where you belong.’
The Scots Nats are riven on this issue. Trans rights activists made sweeping progress before their opponents began to push back. The Scottish government aims to reform the Gender Recognition Act to remove medical experts from the process and shift to a system of self-declaration. Sturgeon has been an eager patron of this cause, a symptom of the fear of being on ‘the wrong side of history’.
For Sturgeon, this perhaps holds a personal resonance given the approach she took to the repeal of Section 28 (Clause 2a in Scotland). She was, for the SNP at that time, fairly sympathetic to gay rights, but even back then her penchant for triangulation was evident. When a privately-funded (and largely ignored) postal ‘referendum’ showed opposition to repeal in 2000, the BBC reported:
‘Scottish National Party education spokeswoman, Nicola Sturgeon, said the result confirmed that many Scots were concerned about repeal.’
The report went on to quote Sturgeon touting the SNP’s policy to ‘provide people with the necessary reassurance’ by giving marriage ‘a statutory underpinning’ in new schools guidance, a policy opposed by equality campaigners and only acceded to by the embattled Labour-Lib Dem executive at the eleventh hour. While maintaining that ‘other relationships’ should not be denigrated, Sturgeon said:
‘We believe that the value of marriage should be clearly referred to in the guidelines.’
Perhaps this drives Sturgeon’s performative progressivism on this issue, which is so hardwired into her government’s every move that even legislation to improve women’s representation on public boards defined ‘women’ to include biological males.
That law is now the subject of a judicial review brought by For Women Scotland, a small, self-funded campaign group committed to protecting women’s legal rights. Earlier this month, the Scottish government’s QC told the Court of Session:
'It is a legitimate aim to treat trans women as women for the purposes of public board appointments.’
Draft guidelines from Scotland’s chief statistician, seen by the Times, state that ‘questions about a person’s biology should not be asked, except potentially where there is direct relevance to a person’s medical treatment’, while an accompanying document urged:
‘In most cases data should be collected on the basis of gender identity rather than sex.’
Among those pushing back against this gender conservatism are Joanna Cherry QC, a leading SNP MP who is seen as a potential candidate for the party leadership. She and Sturgeon are known to be on frosty terms. And while the divide implicates their respective stances on securing another independence referendum and the treatment of Alex Salmond by the Scottish government, the pair are sharply at odds on gender identity and the law. Cherry’s criticism of plans to reform the Gender Recognition Act, which she fears could weaken the sex-based provisions of the Equality Act (2010), has seen her subjected to a torrent of abuse online.
If Sturgeon’s video message is another salvo in this rivalry, it would appear to misunderstand Cherry’s position. It’s hard to imagine the Edinburgh South West MP disagreeing with much of her leader’s statement. She has certainly never called for the SNP to be unsafe, intolerant or unwelcoming for trans people and has a sound track record of campaigning for equality.
Cherry has been cast as a monstrous transphobe not for anything she has said but because she has said anything other than ‘Yes, of course’ to the every demand of the trans rights movement. An advocate like Cherry was always going to fall foul of those rushing to change the law because she understands both what is at stake and the tendency of speedy legislating to produce bad legislation.
Most people can’t make head nor tail of this debate and resent how much time is taken up with it. But it matters because sex matters and once sex and gender are fully conflated it will trigger — and in some cases is already triggering — fundamental changes in law, public policy and process.
If womanhood is a matter of identification, not sex, then the sex-based provisions of the Equality Act become impossible to enforce. If the census makes no distinction between sex and gender, we can no longer do something as basic as count the female population of the country.
If the NHS records patients by gender, not sex, and if the police does the same for crime, our understanding of the specific health needs of biological women will be diminished. The profile of victims and offenders for violent and sexual crimes will change in meaningful ways. Exemptions and protections rooted in earlier understandings of what constituted a woman will lose their rational basis for excluding anyone our current understanding classes as such.
The facile rallying cry ‘trans rights are human rights’ is premised on the strawman — strawperson? — argument that gender-critical feminists are seeking to undermine human rights. In fact, it is those issuing that cry who are jeopardising hard-won legal protections by collapsing the categories on which they are premised. People suffering from gender dysphoria deserve respect and compassion, protection from harm and discrimination, and the full funding of all their services, but this can be done without gutting women’s sex-based rights.
Nothing has harmed the interests of trans people as grievously as their cause becoming a pet issue for political posturers and cynical factionalists. They have been reduced to a talking point, a box on a message grid, an easy retweet. If trans rights are human rights, isn’t it time they were treated like human beings?