With the arrest of the SNP chief executive, Peter Murrell, and police cars surrounding Nicola Sturgeon’s home still vivid in the public mind, you might have thought that the new First Minister, Humza Yousaf, would want to lower the temperature of Scottish politics just a bit. To look, for example, for some positive agenda to unite his party and the country, to avoid controversial legislation that is opposed by Scottish voters and divides the independence movement. Apparently not. We’re told that he is about to commit to a doomed legal battle against the UK government’s veto on the Gender Recognition Reform (Scotland) Bill. What does he know that we don’t?
The bill to allow 16-year-olds to change their sex by declaration without any medical intervention (self-ID) is opposed by two-thirds of Scottish voters. According to Panelbase, only 20 per cent of Scots think the new First Minister should proceed with his legal challenge to the section 35 order under which the GRR Bill was blocked. The order was issued in January by the Scottish Secretary, Alister Jack, on the grounds that it conflicts with UK equalities law and could endanger women – the first time this part of the Scotland Act has ever been implemented.
The obvious thing to do, as many in the SNP are privately urging, is to let the bill die a natural death, to stop wasting public money on a flawed and deeply unpopular proposal. But the SNP’s coalition partners, the Scottish Green party, have signalled that they will ‘walk’ if Humza Yousaf does not fight the good fight for self-ID, all the way to the UK Supreme Court if necessary. But there he will surely lose. The GRR Bill clearly affects the operation of existing UK law on gender and equalities and that is not going to change.
So much has happened in the past month that it is perhaps hard to recall just how divisive this bill has become. Indeed, it appeared the single issue that did most to precipitate the shock departure of Nicola Sturgeon in mid-February. The gender bill was passed by Holyrood before Christmas after an acrimonious late night debate – and the SNP’s biggest parliamentary rebellion since it took office in 2007.
The bill allows anyone from the age of 16 to change legal sex simply by making a declaration and living in their new gender for six months if under 18, and three months if over. Under UK law, transgender people have to secure a diagnosis of gender dysphoria and live for two years in their new gender before getting a gender recognition certificate. Self-ID was billed as a ‘purely administrative’ matter by Nicola Sturgeon: removing needless bureaucracy that had become a burden to this supposedly persecuted minority. What it actually meant, it turned out, was putting male-bodied sex offenders in women’s prisons.
It emerged in late January that a double rapist, Isla Bryson, formerly Adam Graham, had been placed on remand in Cornton Vale women’s prison. He had changed his gender by self-ID after being charged. What’s worse is that he wasn’t alone. Katie Dolatowski (formerly Lennon) a six-foot-five convicted trans paedophile was already in Cornton Vale, as was Sophie Eastwood (formerly Daniel), a violent prisoner who had murdered a cellmate in 2004.
Feminist groups have been arguing for years that self-declaration poses a danger to women and girls because it would allow predatory men to invade their single sex spaces – all they needed to do was put on a dress. These revelations seemed like proof. Nonsense, said Nicola Sturgeon who had pinned her rainbow colours very firmly to the trans mast; these concerns were simply ‘not valid’. Indeed she declared that people who objected to self-ID were ‘deeply misogynist, often homophobic, possibly racist’.
Faced with the public outcry over Bryson, the Scottish government at first doubled down. Nothing to do with us, said the justice secretary Keith Brown, it’s a matter for the prison service. Ministers also argued that this had nothing to do with the gender bill because, duh, it hadn’t been passed into law yet – so how could it?
But the Bryson affair was all about self-ID. Under the guidance of the Equality Network and the Trans Alliance, the Scottish Prison Service (SPS) had been piloting self-ID in anticipation of the gender recognition legislation. The SPS agreed to house offenders in whatever ‘social gender’ they presented, even when they changed their gender by declaration after they had been prosecuted. That this came as a shock to the Scottish government is one of the more puzzling sidebars to recent Scottish history. How could they not have known?
Well, they know now. The hands-off approach lasted all of one week. The tabloid front pages showing a track-suited Bryson, with very obviously male genitalia, were too much. Nicola Sturgeon announced that he should be sent to a male prison. Only she couldn’t bring herself to actually call Bryson a man. In a press conference on 6 February, explaining the change of policy, she still referred to Bryson as ‘her’. In a series of excruciating TV interviews, the First Minister then ransacked the thesaurus in her determination to call Bryson anything but a man. ‘She regards herself as a woman,’ Sturgeon told reporters. ‘I regard the individual as a rapist.’
Then, suddenly, with the row still raging in Holyrood, she resigned on 15 February, plunging the SNP into a crisis that continues to this day. Sturgeon denied that she was resigning over the gender bill, but said she ‘regretted that it was not possible to have a rational debate’ about it. There are many in the SNP who think it is not possible to have a rational debate with people who deny the existence of human biology.
Humza Yousaf seems determined to revive this row by challenging, in the courts, the section 35 block on the gender bill. ‘If we cave in on this,’ he told BBC Scotland, ‘what message will it send to Westminster? The UK Tories,’ he went on, ‘will be able to halt any Holyrood legislation it wishes.’ That is actually not the case. Section 35 has always been part of the devolution framework and is a key part of the 1998 Scotland Act. It is simply designed to prevent legislation of the Scottish Parliament altering or undermining UK laws.
Rishi Sunak has made clear the UK government is not going to introduce self-ID along the lines of the Scottish gender bill. Indeed, he has secured the support of the Equalities and Human Rights Commission to strengthen the legal protections for women in the 2010 Equality Act by insisting on the primacy of biological sex, not ‘acquired gender’. The UK Supreme Court is therefore bound to argue that the gender bill would have a material impact on the operation of the UK law.
It seems that the Scottish Green party, who represent fewer than 10 per cent of Scottish voters, are dictating a course of legal action that is not only futile but which has placed the SNP on the wrong side of Scottish public opinion. As the former SNP MSP Joan McAlpine put it on BBC radio, this is ‘not the hill for Humza Yousaf to die on’. Yet he seems determined to make what could turn out to be his last stand.
Comments