Risks in the final rush to legislate self-ID in Scotland

The Scottish government’s plans to allow anyone from age 16 upwards who is ordinarily resident in Scotland to obtain a gender recognition certificate (GRC) without any medical assessment are due to be voted on by the Scottish Parliament tomorrow, 21st December.

The vote comes barely a week after the Court of Session ruled that obtaining a GRC under the existing Gender Recognition Act changes a person’s sex for the purposes of the equality law (indeed the GRA 2004 changes the definition of sex entirely, removing biology from the law). Equality law is a reserved matter for UK-wide legislation.

154 amendments to get through

A total of 154 amendments have been tabled for the third-stage debate on the Gender Recognition Reform Bill (Scotland). MSPs will begin the race to get through them some time after 2pm today, and the official estimate is that they can complete it this task in just nine hours and 15 minutes before proceeding to vote on the final version tomorrow.

The amendments include attempts to introduce safeguards and impact assessment in several areas :

• Group 1: a set of amendments on applications by 16- and 17-year-olds 
• Group 2: safeguards concerning people with criminal convictions
• Group 4: safeguards concerning medical evidence and time living in the acquired gender
• Group 7: safeguards concerning the statutory declaration and identity documents
• Group 8: safeguards concerning background (criminal record) checks
• Group 9: safeguards concerning people with impaired capacity
• Group 13: interaction with the Equality Act
• Group 15: provisions for review of the Act
• Group 16: provisions for reporting on the operation and impact of the Act
• Group 17: provisions on gender identity healthcare
• Group 18: provision on reporting on the number of GRCs issued
• Group 19: provisions on wider data collection.

Stonewall says get on with it: oppose nearly all the amendments

The Trans Equality Network and Stonewall have given MSPs clear instructions on which changes to support and which to oppose, in order to rattle through the amendments. Their recommendations are summarised here:

In short, they say to oppose almost all amendments concerning safeguards, review and reporting on the Act.

Legal uncertainty about the Equality Act

The amendments on the Equality Act are being debated in a the context of extreme uncertainty. It is not known whether Scottish GRCs will be accepted by the UK government, and no time has been allowed to take stock of last week’s Outer House ruling.

It is not known whether that ruling will be appealed, or whether the UK government will take action to clarify the relationship between the GRA and Equality Act. Our petition on this is closing in on 50,000 signatures, and the Prime Minister has previously indicated his willingness to ensure such clarification.

Campaign group For Women Scotland says:

Any MSP who can lay claim to how the provisions of the Equality Act can be applied to protect biological women, either currently, or if the Gender Recognition Reform (GRR) Bill is passed, is either dishonest or sadly mistaken.

It argues that the only way to protect single-sex services is to vote for an amendment that states a GRC issued under the GRR Bill does not change a person’s sex under the Equality Act, and points out that none of the amendments put forward will achieve this.

Constitutional risk

The uncertain boundary between the Equality Act 2010 and the Gender Recognition Act 2004 means that the legislation is treading a tightrope to avoid legislating in areas outside of the Scottish Government’s competence.

Holyrood Daily’s Mandy Rhodes yesterday reported that Shona Robison, SNP Cabinet Minister and stanch proponent of self-ID, had been phoning rebel SNP MSPs, and published an extract of a letter warning that if certain GRR amendments are passed, it risks the bill being legally incompetent and that the Scottish Government “would have no option” but to move to delay.

Still work to be done on women’s rights

Last night, in an emergency session, two UN Special Rapporteurs addressed the Equalities, Human Rights and Civil Justice Committee and gave contrasting views on the implications of the proposed reforms. The inputs by the two UN experts reflected the different positions and interests on the issue.

Reem Alsalem, the Special Rapporteur on violence against women, its causes and consequences, emphasised the need for safeguards and the lack of consideration of impacts on women and girls. She noted that a recent opinion poll found that two-thirds of Scottish voters are against the legislation. And she emphasised the prevalence and fear of voyeurism, flashing, and sexual assault, and the need for privacy, dignity and inclusion of women.

She concluded:

If after six years there is still this level of polarisation, and feelings of exclusion of their point of view, this is a reasonably good sign that there is still work to be done.

Uncertainty about international obligations

By contrast the other special rapporteur to address MSPs, Victor Madrigal-Borloz, the UN Independent Expert on Sexual Orientation and Gender Identity, spoke of “horrifyingly stigmatising language” being used in the debate, such as referring to “men in dresses”.

Madrigal-Berloz has written to the Scottish Government arguing that state parties have legal obligations to enact legal sex change via self-identification (we disagree).

The EHRC yesterday responded saying it is questioning the UN expert’s interpretation and raising this in correspondence with the Scottish Human Rights Commission. It says:

The differing perspectives offered by UN Special Rapporteurs demonstrate again that this is a complex area of public policy and debate that is continuing to evolve, and underline the need for detailed and robust parliamentary scrutiny of the implications of reforms for trans people, women and girls, religious groups, and others before they proceed.

Removing trans people’s human rights?

A briefing on Stage 3 of the bill by analysts MurrayBlackburnMackenzie (MBM) highlights another central problem with the Bill: it appears to remove Scots’ current access to the UK GRA system. This, they say, would leave a person born in England or Wales and now living in Scotland with no way to obtain a changed birth certificate, and would remove any means for a person in Scotland to obtain UK-wide gender recognition.

They say MSPs should clarify if this is its effect.

MBM concludes:

Thanks to the recent court case, on 21 December as MSPs you will be faced with a clear choice: to make the legal status of being a woman under the Equality Act available to anyone aged 16 or over, based on no more than a bureaucratic process of self-declaration, undermining protections for women in that Act; or to refuse to agree that and insist on being presented instead with a Bill that balances properly the interests of different groups, and does not further erode the rights of women and girls in Scotland.

This may not be the choice you want. But after years of an unusually poor policy process, insincere consultations, clearly deliberate evasion on a key point, and a wasted opportunity to improve the law at earlier parliamentary stages, it is the only one now available.