The Supreme Court has unanimously backed the biological definition of a woman. Women’s rights campaigners across the country are celebrating at the news while author and Sex Matters campaigner Helen Joyce told Spectator TV that she feels ‘vindicated and amazed’ by the decision. But politicians in the Scottish National party won’t be feeling quite as jubilant. As lawyer and lecturer Michael Foran told me on today’s episode, what will now happen with the gender bill is down to the Scottish government. With just a year to go until the Scottish parliament elections, letting the trans debate rear its head again could spell trouble for the SNP.
The party has in recent years become embroiled in the trans debate. It was under Nicola Sturgeon that the issue first ramped up when she pushed her gender reforms through Holyrood. Humza Yousaf then took the UK government to court after former Scottish Secretary Alister Jack blocked the bill with his unprecedented use of a Section 35 order. Current First Minister John Swinney then claimed he was ‘happy’ to have backed the bill at the time – despite the emergence of controversies involving safety in female prisons and NHS Fife.
As Foran notes on today’s Spectator TV: ‘There’s no legal effect on the Gender Recognition (Reform) Bill from these judgments alone – so it is open to the Scottish government to reintroduce that bill into the Scottish parliament.’ He explains that if Holyrood chooses to back the bill again, the current Section 35 order would fall and the UK government would have to decide whether it wants to make a similar move to prevent the reconsidered legislation from getting royal assent. In a twist that seems counterintuitive, however, there is a chance that today’s win by For Women Scotland could make it harder for current Scotland Secretary Ian Murray to block the bill – as the UK government would have to find a reason unrelated to the effect of a gender recognition certificate on the Equality Act to justify issuing another Section 35 order.
But how much political currency is there in pushing on with gender reforms at all? The pro-GRR crowd in the SNP certainly has their allies. Joyce describes in today’s episode how groups like For Women Scotland and Sex Matters were ‘on the other side’ from not only sections of the Scottish and UK governments, but Amnesty International and the Equality and Human Rights Commission (EHRC). ‘On the other side,’ she added, were ‘all those well-paid people, all those lawyers, all those people who have lost sight of reality and thought that the words are more important than the reality, that the possession of a piece of paper is what makes people man or woman, male or female, not the actual immutable physical reality of being mammals.’
Scottish political parties have noticeably cooled their rhetoric on gender in recent years.
Yet political parties have also noticeably cooled their rhetoric on gender in recent years. Scottish Labour’s Anas Sarwar and Jackie Baillie both backed Sturgeon’s bill – but earlier this year admitted they regret their decision ‘knowing what we know now’. All of the four Scottish Lib Dem MSPs supported the bill in 2022 but have been fence-sitting of late, today merely noting the ‘confusion’ that existed around the Equality Act. The Scottish Tories joined the pro-independence Alba party in opposing the gender bill and have lauded today’s judgment as a ‘victory’. Even SNP Cabinet Secretary Shona Robison has announced today that the Scottish government ‘accepts the judgment’ – leaving the Scottish Greens as the only Holyrood party vocally opposed to today’s decision. The environmentalists have attacked today’s ruling as ‘deeply concerning for human rights’, adding that: ‘Scottish Greens will continue to stand with trans people and resist culture war being waged against them.’
Will pressure from the Greens be enough to persuade the First Minister (who is known to be more reluctant than his predecessors to broach the subject) to push forward with gender reforms? From an electoral standpoint, the polls suggest that the SNP will end up the largest party in Holyrood next year but it looks, at present, unlikely the nationalists will win a majority. In this case the party will have to rely on opposition groups for votes and the Greens have a history of backing the government in the past. While senior SNP figures insist that another coalition deal with Patrick Harvie’s party is far from likely, the Scottish Greens could demand changes on gender policy in exchange for support – although ex-FM Yousaf belatedly discovered just how bruising letting the Greens dictate policy turned out to be.
Public opinion has shifted too, as both Foran and Joyce acknowledge in today’s episode. Polling released today by More in Common finds the country’s top three priorities are the cost-of-living crisis (64 per cent), the NHS (40 per cent) and immigration (28 per cent). In contrast, a mere 2 per cent are preoccupied with the trans debate. Earlier this week, First Minister John Swinney announced he would bring forward his Programme for Government to 6 May. The SNP administration has already spent hundreds of thousands of public funds on pursuing the gender bill. Scots concerned with rising costs and failing public services are unlikely to be impressed if Swinney’s upcoming policy plan includes further cash-splashing on this front.
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