Will the Scottish government push ahead with bad law, or show sense with further discussions on impact of self-ID?
Shona Robison to make statement to parliament on gender recognition reform
This article was first published in the Scotsman on Saturday 26 February
In a few days’ time, on Thursday afternoon to be precise, the Scottish Government will make a statement in Parliament about a controversial piece of legislation.
It’s safe to assume that Shona Robison, the cabinet secretary responsible for steering through the Gender Recognition Reform (Scotland) Bill, will make the statement, speaking around 2.30 pm, after questions on rural affairs. There is no indication yet as to the purpose of her statement. She may be about to introduce the Bill from the front bench, or simply give an update on its progress in light of recent legal decisions on the definition of sex. The government is giving nothing away.
In a tweet that could be seen as equivocal, it announced that the statement will be made on 3 March and that the government was “committed to introducing this Bill within this parliamentary year.”
The First Minister made that promise in her Programme for Government speech last September, when she said the Bill would seek to “make the existing process of gender recognition less degrading, intrusive and traumatic,” while at the same time acknowledging that some people “have sincerely held concerns about this legislation.”
It now transpires those concerns may be held, not just by feminist campaigners worried that a key element of the bill – self-ID – will conflict with women’s sex-based rights, but by some of the finest legal minds in the country.
Last week, in a landmark decision, the Inner House of the Court of Session, Scotland’s highest civil court, ruled that the government’s plans to expand the legal definition of a woman for the purposes of the 2018 Gender Representation on Public Boards (Scotland) Act was unlawful.
This case had been brought by the grassroots feminist group, For Women Scotland, who argued that the government had exceeded its powers by including transwomen in the definition of women in that act.
The Court of Session agreed. Lady Dorrian, who delivered the decision, wrote that the 2018 law breached the 2010 Equality Act, legislation reserved to Westminster, and was therefore “out with” the legislative competence of the Holyrood Parliament.
This ruling could have far-reaching implications for the First Minister’s promise to introduce self-ID, a process whereby a man (or woman) can change their legal sex simply by stating that they are now the opposite sex – a change in the law, which, by any stretch of the imagination, changes the legal definition of a woman, or a man.
Or as Ian Smart, former President of the Law Society of Scotland, wrote in his blog,“So, if the Gender Recognition Reform (Scotland) Bill seeks to redefine "a woman", as I think it does, then it is beyond the legislative competence of the Scottish Parliament.”
And he pondered whether the Lord Advocate would be happy to sign off the Gender Reform Bill, as is required by the Ministerial Code, under such circumstances.
“If Dorothy Bain thought Lady Dorrian had got For Women Scotland wrong in law she would have been off to the Supreme Court. Noticeably she isn't,” he asserted.
To add to the confusion, within days of the For Women Scotland judgement, in an appeal brought by Fair Play Women, judges ruled that the Scottish Government could go ahead with the 2022 Census on the basis that trans people can self-declare their sex.
In other words, the Census guidance now allows people to choose to tick male or female, regardless of what it says on their birth certificate or whether they have a gender recognition certificate.
What is woman?
Male or female? Sex at birth or gender identity? Biology or feelings? What is the definition of a woman – or man – in 21st century Scotland? It seems no-one really knows anymore.
The solution lies with Shona Robison, who could, on Thursday, say she is delaying the introduction of the Gender Recognition Reform Bill while she gives “more detailed consideration” to the consequences of self-ID, as she was advised to do last month by the Equality and Human Rights Commission.
Further discussion would be the mature, democratic thing to do. While those in support of self-ID argue that it has been “one of the most consulted-on policies of all time”, as Vic Valentine of Scottish Trans said recently, a cursory examination of the process tells a different story.
The government and its supporters may well point to two consultation exercises, one in 2017, the second in 2019, which attracted thousands of responses, mostly from members of the public.
But as the Gunning principles – the minimum legal standards for public consultations – make clear, there is much more to consultation than commissioning contractors to simply add up the number of emails for or against change.
Campaigners against a change in the law argue, with some justification, that neither politicians nor senior civil servants can answer basic questions about the impact of self-ID.
As the independent policy analysts MBM wrote recently, the government seems “unable to contemplate that there might be unintended consequences” as a result of their proposal. Measures to address barriers facing women and the collection and use of data are just two raised by EHRC and others.
Good law is an essential element of the democratic process. In drafting it, legislators must surely consider all viewpoints, not just those of the groups lobbying for change.
And as the Scottish Government found to its cost with the ill-fated Named Persons scheme – which had to be scrapped after the UK Supreme Court ruled it breached human rights legislation – even bills drafted with best of intentions can result in bad law if due process is not followed.
On Thursday, Shona Robison has a choice. She can show leadership by extending discussions on the impact of self-ID, or she can plough ahead with bad law, and risk ending up in court. It’s her call.
First up is the legendary MP @joannaccherry whose defence of women’s rights is legendary. She appealed to the Scottish government to press pause on their plans to introduce self-ID in her column in the National newspaper.
Scotland’s top magazine editor @holyroodmandy has written extensively on the self-ID controversy. In her Holyrood column published today, she brings her unparalleled insight to bear, asking if Nicola Sturgeon is really going to push ahead with gender reform, at the expense of women’s rights, increased division, and good law?
And one of the few male journalists to consistently write about this issue @alexmassie of The Times, argues today that making trans lives better is a social, not a legal issue.