Perhaps the Scottish government thinks it’s a good time to put out the rubbish. With the news agenda dominated by the Scottish Budget and with the Christmas recess imminent, First Minister Humza Yousaf has reportedly decided to abandon his appeal against the UK government’s Section 35 order on the Gender Recognition Reform (Scotland) Bill. The bill, intended to make it easier for trans people to obtain gender recognition certifications, was attacked by ‘gender critical’ feminists, including former SNP leadership contender Kate Forbes. Westminster put the brakes on the legislation – a decision which sparked an SNP backlash. But now, if reports in the Herald are accurate, it seems Yousaf has finally seen sense.
If the Bill is dead, it may also be a good time to put out the Scottish Green party. Their promotion of trans ideology has alienated many SNP supporters. The Greens were the driving force behind the legislation passed by the Scottish parliament in December 2022 after a stormy all-night session and the resignation of the SNP community safety minister Ash Regan.
The problem with the gender bill is not simply that it makes it easier for trans people to change legal sex, but that it would create a gender divide at the English border. The UK government has made clear that it will not be introducing the policy of self-ID, as it is called, in England. This would mean that gender recognition certificates awarded in Scotland would not be valid south of the border. Having two definitions of sex in one country was always going to be a problem.
It looks increasingly likely that the bill is dead, at least until after the next general election.
This was essentially why the Scotland Secretary Alister Jack blocked the bill earlier this year under Section 35 of the Scotland Act. He argued that the gender bill would conflict with the 2010 Equality Act. This UK-wide legislation permits the exclusion of male-bodied transwomen from women’s spaces ‘as a proportionate means of achieving a legitimate aim’. Before she resigned as First Minister in February, Nicola Sturgeon condemned Jack’s veto as a ‘full frontal assault on devolution’ and orderedthe Lord Advocate Dorothy Bain to challenge the ruling as irrational and unreasonable.
Earlier this month, in Edinburgh’s Court of Session, Lady Haldane threw out the Scottish government’s case and ruled that Alister Jack had been within his powers in withholding Royal Assent. Lady Haldane did not rule, however, on the merits of the bill itself — merely on the Scotland’s Secretary’s unprecedented use of a Section 35 order to pause it. The Gender Recognition Reform (Scotland) Bill remains an act of the Scottish Parliament, passed by a large majority of MSPs.
After the Court of Session ruling, Yousaf indicated that he would appeal Lady Haldane’s ruling and persevere with attempts to unblock the bill. But Yousaf is reported to announce tomorrow, before Holyrood breaks for Christmas, that the Scottish government has decided to give up the ghost. This will not please the SNP’s coalition partners, the Scottish Green party.
Their leader Patrick Harvie has said that passing the gender bill is a ‘red line’ for his party and suggested that he would ‘walk’ if the bill failed. There are many in the SNP, not least Kate Forbes, who would be only too happy to wave the Greens goodbye. She and the veteran MSP Fergus Ewing blame many of the Scottish government’s recent policy reverses, such as the botched deposit return scheme, on the amateurism of the ‘wine bar revolutionaries’, as Ewing calls them.
Of course, Yousaf has not abandoned the gender bill as such — only the appeal against the use of a Section 35 order. However, it looks increasingly likely that the bill is dead, at least until after the next general election. It seems unlikely that the Scottish government would want to try to resurrect the highly divisive trans debate during an election year. The gender bill is profoundly unpopular and, as it stands, is opposed by Scottish voters by a margin of two to one.
This is not unconnected with the scandal earlier this year of the transgender rapist, Isla Bryson, who was placed on remand in Cornton Vale women’s prison. He had self-identified as a woman after being charged. Under intense pressure, including from women in the SNP, Nicola Sturgeon ordered the Scottish Prison Service to send Bryson to a male jail — though she was still not prepared to call Bryson a man.
It may actually suit Yousaf and the SNP for this vexed legislation to be parked for the duration. Indeed, this could even be the last we will hear of this vexed bill. The First Minister surely does not want to spend the next year being asked endlessly by journalists whether or not he thinks women can have penises.
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