Can Scotland lead the transgender debate in the right direction?

30 August 2019

Carys Moseley comments on developments in Scotland’s approach to transgender issues

Over the summer there has been a renewed public debate in Scotland about the problems arising from transgender politics. The reason is that at the end of June the Scottish government decided to open a new consultation on the reform of the Gender Recognition Act. This was due to the fact that the first one conducted during the winter of 2017-2018 did not adequately address concerns about the effects on women. This is good news, although there is a need to be vigilant.

The Scottish government has also said that it will do the following:

  • Issue new guidance on single-sex spaces in schools, to preserve them for girls who want them.
  • Conduct an official review of data collection procedures, to assess whether they recognise the impact of biological differences between people born male and female
  • Consult on whether gender recognition should be allowed for young people aged 16 and 17.

It also promised to publish a new draft Gender Recognition Bill for Scotland this summer, but still has not done so. Now is therefore a good time to take stock of how debate has unfolded in Scotland, and how this could affect the rest of the UK.

Lack of public support became evident

The interesting question here is: “Why is this debate currently underway in Scotland?” The answer lies partly in the fact that the initial lack of public debate on the issue masked a deep unease among the population, which gradually became evident over the flashpoints of prisons and schools.

New women’s groups were formed in Scotland as in England once people started to realise that there was no public debate on the Gender Recognition Act, and that the Scottish government and press were united in pretending that the public in Scotland was more in favour of transgender politics than elsewhere in the UK. Together they upheld the myth of Scotland as somehow inherently ‘progressive’. Opinion polling commissioned by political blog Wings Over Scotland and published in January 2018 disproved this. Scottish people were overwhelmingly opposed to the proposals, to the point that only 26% of people aged 16-34 – the most supportive demographic – agreed with them.

Sham consultation challenged

On the face of it the Scottish government’s consultation was incredibly thorough, with the main document running to 140 pages – far more than would normally be deemed necessary. It was jam-packed with references to all kinds of international research backing up the policy proposals, and barely referred to any more critical research. Was this a case of protesting too much in favour of a policy with absolutely no warrant?

Looking back at the timing of it all, it could be argued that Scotland was being used as a testing ground for gauging the strength of active public opposition to the plans. This was highly convenient given that opponents took longer to get organised in Scotland than in England. Activists within the civil service may have hoped that the relative lack of public debate in Scotland up until then would make it easy to push reforms through there, setting a precedent for London that would make changing the law look inevitable. A closer look at what the Scottish government has been reconsidering should put an end to such hopes.

Scottish government rejects ‘non-binary’ rights

Back in June the Scottish equalities secretary Shirley-Ann Somerville announced that the Scottish government would not create a new legal right to identify as non-binary, i.e. neither male nor female. This is a very good move, making it more likely that the UK government will have to backtrack on similar plans. At the same time however, the Scottish government also promised to set up a working group to look at how to create a legal right to identify as non-binary.

There isn’t public information available as to exactly why this decision was made, but it is reasonable to suppose that concerns about the Census in Scotland, about the appropriate place to house transgender prisoners and about children all played a part.

Data experts concerned about Scottish Census

In August National Records Scotland announced that the next Scottish Census would continue to ask a binary sex question, i.e. the options will remain ‘male’ or ‘female’. In normal times this would not even need to be said. However since last December experts on official data had been saying that the Scottish government’s proposals for the next Scottish Census, to allow a range of non-binary options alongside ‘male’ or ‘female’, would undermine the reliability and comparability of data.

The Culture, Tourism, Europe and External Affairs Committee of the Scottish Parliament was given the responsibility of scrutinising the Census (Amendment) (Scotland) Bill 2018 and held evidence sessions. Last June Susan McVie, a leading criminologist and statistician in the Law School of Edinburgh University, wrote to the Committee urging it to make the case for recording sex as biological in the Scottish Census. Concern was also raised about the different (assumed) definitions of sex in the law.

Trans policies put women and girls at risk

It should be evident to all by now that making gender change easier will put women and girls at risk, as well as sowing confusion among members of both sexes. In our response to the consultation we argued that if Scotland were to make changing gender easier, male criminals could escape from England and Wales to Scotland in order to hide more easily under the new regime, i.e. by being able to identify as ‘women’ without undergoing medical checks.

In May an organisation called Women and Girls in Scotland criticised the Scottish government for putting women and girls at risk in schools, refuges and prisons by not consulting properly on its transgender policies. The fact that none of the authors of their report are listed on the website speaks volumes regarding their sense of safety in all this. Seasoned observers of these debates know how much women who speak out in the media and social media get viciously attacked by transgender activists. Is this the sort of scenario we want for the future, one where citizens feel they have to hide their identities when participating in public debate? And this all because public policy risks being taken over by an ideology based on lies?

Dissent within the Scottish political class

As we have seen there does seem to be a growing concern about the importance of telling the truth about sex in Scotland’s public debate. The key thing now is for this concern to be taken up by the political class. In this respect it is significant that dissent has emerged against Scottish First Minister Nicola Sturgeon’s support for easier gender change from within her own party, the Scottish National Party.

In April a Twitter exchange between three female SNP Members of the Scottish Parliament was leaked to the press, revealing that most of their colleagues felt like them, concerned that Nicola Sturgeon was too supportive of transgender politics.

Can Scotland be safe?

Essentially the more conscientious politicians in the SNP were asking, is Nicola Sturgeon serious about making Scotland safe or not for its inhabitants? Because if she were to be perceived as not doing so, this would clearly make the SNP politically toxic in the next Scottish elections as well as the next UK general election.

Scottish politicians may have been somewhat late in the day in speaking up about the dangers of easier gender change. However, this means they have had more time to study the debates in England and Wales and learn from them. They have also been looking at Canada, which has historic ties to Scotland, and which passed a gender identity law back in 2016. (The Scottish government did reveal in its original consultation that Canada was one of the countries it had studied as a model for how to implement transgender rights.)

Canada as a warning

Joan MacAlpine, another SNP politician dissenting from the Sturgeon line, and convened of the aforementioned Scottish Parliament committee, invited Canadian feminist Meghan Murphy to speak at Holyrood in May about the effects of Canada’s gender identity law. Perhaps the single most important lesson to be learnt here is how little opposition there was to it in Canada, and how society is now paying the price.

This is partly why the Scottish government’s consultation on the Gender Recognition Act in Scotland attracted a huge response not only from elsewhere in the UK but also from abroad, particularly Canada and the USA. This showed that many organisations realised what game was being played within the UK, namely using Scotland as a testing ground. This is not unlike the way in which specific Canadian provinces have been used to pass LGBT legislation on the local level, to bypass the large-scale public debate that would occur should such proposals be put forward in a general election campaign.

Is Scotland more honest about gender reforms?

There is one thing that can be said in favour of the Scottish government’s initial consultation, which is that it did at least hint that the legal basis for the proposals was due to a judgment by the European Court of Human Rights handed down against France in the spring of 2017. The case of A.P. Garçon et Nicot c France was brought by three male-to-female transgender rights activists against France deliberately to undermine the system put in place requiring people to undergo medical checks to prove they had undergone gender reassignment.

The Court ruled against France, but it also reiterated that each member state of the Council of Europe, the international body which appoints the Court judges, has a margin of appreciation as to how exactly it implements transsexual rights. In other words, no country is absolutely obliged to implement a system which allows people to change gender without undergoing medical checks.

Time to debate the European Convention on Human Rights

By contrast the consultation for England and Wales, run by the Government Equalities Office, made no mention of this crucial judgment as the legal basis for consulting on changing the law. This is a serious shortcoming and suggests the UK government is trying to hide from a possible further public debate on European (not just EU) institutions as to whether the UK should remain under the jurisdiction of the European Court of Human Rights, and therefore whether it should remain a member of the Council of Europe. For the fact is that the Conservative Party has long argued that the UK should leave it, ostensibly due to concerns about terrorists gaining spurious rights under the European Convention on Human Rights. Even the previous prime minister said at one point that the European Court of Human Rights had done nothing for the UK.

The Gender Recognition Act itself was only pushed through by Tony Blair’s government because the UK lost a case against transsexual rights activists at the European Court of Human Rights in 2002. What this amounted to was the triumph of a campaign initiated by the Council of Europe and pushed onto the European Parliament to enshrine transsexual rights in law across Europe. Effectively this undermined the plain meaning of the European Convention. The insistence on defining sex properly in Scotland may signal the start of a wider and better debate on how transgender politics has affected the understanding of human rights and dignity.

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