Responding to Kezia Dugdale
What I find difficult is that people don't believe women when we say we fear self-ID will impact our sex-based rights.
Former leader of the Scottish Labour party, Kez Dugdale, wrote a robust defence of the Scottish government’s plans to introduce self-ID in the Times today.
She writes, with some feeling, about how the campaign against self-ID had made her ‘deeply uncomfortable’ and that she found it difficult to be on the ‘other side of an issue from some of my political sisters…’
… women whom I greatly admire, women I have learnt from. Women whose shoulders I stand on, and women with whom I’ve linked arms in the political trenches, doing battle against dark misogynistic forces in and beyond our own movement. We have shared wine and tears and carry the political baggage together.
As one of the women who has, in the past, linked arms with Kez against some particularly horrible blokes in the Labour Party, I recognise her pain, but I cannot agree with her on the issue of self-ID. It does impact on women and girls.
I have respectfully responded to each of her assertions. Kez’s direct quotes are in bold, my response in italics. I have largely drawn on the work of MBM, three hugely experienced policy analysts and researchers. Their thoughtful and detailed work on the impact of gender recognition reform is peerless. Any mistakes in this article are mine, not theirs. I also refer to the letter from the Equality and Human Rights Commission to the Scottish government, which sets out the EHRC’s concerns about self-ID.
This bill does not create any new rights nor does it take any away.
The bill significantly extends the right to change your legal sex to a much wider group of people. As the EHRC said in their letter, the bill extends “the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point.”
It just alters a process.
changes the process and therefore its impact.
As MBM has pointed out, the Scottish government argues that the reforms, which open up Gender Recognition Certificates (GRC) to a much larger, more diverse group of people, do not affect who can access to single sex spaces. This position rests on the Scottish government’s belief that GRCs have no effect under the Equality Act 2010.
This is contrary to case law. The UK government’s guidance for transgender prisoners, which is based on case law, states that when a full GRC is issued, that person’s gender becomes FOR ALL PURPOSES their acquired gender.
This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate/AP unless there are exceptional circumstances, as would be the case for biological women.
This example highlights, not only the divergence of views between the Scottish government and the UK government and EHCR, but the potential impact on single-sex spaces.
It takes a system used only by a marginalised and vulnerable group and makes it easier.
The removal of a medical diagnosis of dysphoria significantly EXPANDS the cohort from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point, including 16 and 17-years-olds.
It takes away a medical element three years after the World Health Organisation removed gender identity from the list of mental disorders.
The NHS also states that gender dysphoria is not a mental illness, but states that some people with it may develop mental health problems because of their dysphoria.
In MBM’s Options and Opportunities paper, they suggest you can modernise the process by:
Removing the gender recognition panel
Removing the need for evidence of physical medical treatment
Removing the need for living in acquired gender
But they argue for the retention of a diagnosis of gender dysphoria to respect the rationale for the 2004 Act, which was introduced to provide practical assistance to people with a specific, objectively assessed need and who were expected to feel the need to make significant practical changes to how they present.
Keeping the medical check would also remove any cross-border issues which could follow from GRCs being much more easily obtained in Scotland, including by those living here only for a short period and those born here but living in other parts of the UK.
Retaining an objective third party input also provides the most substantial check against abuse of the process by bad-faith actors, and offers younger applicants much more protection.
It is a simplified process but it is still a significant one. It cannot be done on a whim, as those seeking to change their gender identity must do so with a statutory declaration, an act as serious as signing an affidavit or telling the truth in court.
Adolescents are notorious for doing things ‘on a whim’. The bill extends the right to self-ID to 16 and 17-year-olds. They will not need parental permission or clinical support to change their legal sex.
According to the Scottish government, support and guidance on this life-changing decision will be provided to young people through “schools, third sector bodies and National Records of Scotland.” Is that really a sufficient safeguard?
A false declaration could lead to up to two years in prison.
A young person, who at 16 believes they were “born in the wrong body” and signs an affidavit to that effect, risks two years in prison if they change their mind as they mature. Do we really want to risk criminalising adolescents, whose only crime is to be confused about their sex and sexuality?
Much of the debate about this bill has not been about trans people at all but people who might pretend to be. In order to access what, though? The rules around gender recognition have been in place for 18 years. If this bill passed tomorrow, it wouldn’t allow anyone to go anywhere or do anything they couldn’t do yesterday.
This is assertion, not a fact, given that the there is no clarity on the legal implications of changing the criteria for a GRC, particularly as it relates to the Equality Act 2010.
The EHRC states clearly that the potential consequences of the Scottish government’s reforms include “those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia.”
There are those who will say they are content with a “live and let live” philosophy. Why prod the legal beast? Is this reform really necessary? To those people I say that I heard the same argument made when I was campaigning for civil partnerships and equal marriage.
If you don’t see why the law needs to change, you don’t really believe we are equal and that we matter; that my relationship with my partner is as valid as yours.
Campaigners against self-ID have been consistently framed as transphobic, bigoted, right-wing. As feminist Victoria Smith @glosswitch said today, it is ‘utterly maddening that so many people have deliberately recast women's legitimate fear of male people as a fear of trans people, in order to then characterise any statement made regarding the former as "really" being about the latter’.
However, Kez goes even further, asserting that those of us who are against self-ID are also homophobic and against equal marriage. That makes me feel ‘deeply uncomfortable’.
There will still be single-sex spaces that exclude trans women as there are now. The gender identity exemption of the Equality Act, passed more than a decade ago, allows for this and the bill does not alter a single word of that act. It couldn’t and I wouldn’t want it to.
More assertion not fact. There is no clarity on the legal implications of changing the criteria for a GRC, particularly as it relates to the Equality Act 2010.
And I repeat, the EHRC states clearly that the potential consequences of the Scottish government’s reforms include ‘those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia.’
When campaigners against this bill say “sex matters” it’s because they want to protect these spaces which are often used by the most vulnerable women. So do I and I don’t see anything in this bill which threatens that, let alone takes it away.
It’s why organisations such as Rape Crisis Scotland and Scottish Women’s Aid support the bill. When this argument is made, the first thing opponents do is seek to question motives. It is the rotten core of so much of our public discourse at the moment: undermine, debase and if all that fails, get personal.
It is a matter of public record that, until very recently, the Scottish government only engaged with those women’s organisations that supported self-ID. Grassroots women’s groups and individuals who did not support the Scottish government’s plans were only invited for discussion with ministers and civil servants in the weeks leading up to the publication of the bill, when it was far too late for any meaningful consultation. The bill was already written.
When this bill becomes an act it will change lives for the better. Those campaigners from and arguing on behalf of the trans community know the difference it will make to the dignity and happiness of those who need it most.
Self ID, as proposed by the Scottish government, will allow a 16-year-old lesbian, perhaps struggling to come to terms with her sexuality and convinced by others that she is ‘living in the wrong body’, to change her legal sex from female to male without any medical support, or even the knowledge of her parents. And she will have to affirm that she intends to live in her ‘acquired gender’ for the rest of her life, or risk prosecution.
And that possibility makes me the most uncomfortable of all.