Murdo Fraser is MSP for Mid-Scotland & Fife, and the Scottish Conservative spokesman on Covid Recovery.
In more than 20 years in the Scottish Parliament, I had never seen anything like it. As it was announced that the Gender Recognition Reform Bill has been passed by 86 votes to 39, the public gallery erupted. A small group of trans activists rose to their feet to applaud the passage of the Bill. A little further along, a group of women reacted with fury, with cries of ‘Shame on you!’.
One of the protestors shouted: ‘I am a duck trapped in a woman’s body. Quack! Quack! Quack!’. Another stood and declared, ‘if you are not going to be decent towards women, I will be indecent’, before lifting her dress and ‘flashing’ the Chamber (albeit with her private parts concealed by a merkin).
And so concluded the Parliamentary progress of the gender reform legislation, probably the most politically controversial in the history of Holyrood, and one which saw an unprecedented rebellion within SNP ranks, with a Minister – Ash Regan – resigning office, and 9 MSPs voting against their Party’s whip. For a political movement that places a high price on loyalty to the leadership, it speaks to the wide concern that the Bill engendered that so many were prepared to rebel.
At the heart of the controversy lies the concerns of many women’s groups that a policy of self-ID of gender will leave women and girls vulnerable to males abusing the system to gain access to spaces reserved to females. The Bill provides that anyone, from the age of 16 upwards, can change their legal gender by a simple process of self-declaration after a three month period. There will be no requirement for a medical diagnosis of gender dysphoria or any third-party involvement.
These concerns of campaigners for women’s rights – amongst them J K Rowling – were well articulated during the Parliamentary debates by the Scottish Conservative MSPs Rachael Hamilton and Pam Gosal, who led the opposition. They reflected the views of both the UK Equality and Human Rights Commission and the UN Special Rapporteur on Violence against Women and Girls, Reem Alsalem, who both expressed concern about the changes (although, predictably, Scottish groups dependent on funding from the SNP Government tended to be more supportive).
What was entirely unclear during the passage of the Bill is how exactly these reforms interact with the UK Equality Act 2010, which provides for the ‘protected characteristics’ of both sex and gender reassignment. For example, does a (biological) male holder of a GRC saying they are female now have a legal right to access to female-only service and spaces?
This crucial issue was tested in court by the campaign group For Women Scotland, who asked the Court of Session – Scotland’s highest civil court – for a ruling on the Gender Representation on Public Boards (Scotland) Act 2018 (which requires at least 50 per cent of public boards to be made up of women) and whether its definition of ‘women’ would include those with a GRC. In a judgement provided just two weeks ago, Lady Haldane ruled that a GRC-holder would fit the definition of a woman for the purposes of the Bill, but not necessarily in all purposes – an outcome which just confuses the matter further, and is unlikely to be the last word on the issue.
Despite various attempts to get clarity from the Scottish Government on this vital concern during the passage of the GRR Bill through Holyrood, none was forthcoming. Other crucial cross-Border issues similarly went unanswered. Would a Scottish GRC be recognised in England and Wales? As the provision of passports is a UK, not a devolved, competence, would the UK Passport Office issue new passports to GRC holders showing a new gender?
In light of the confusion between UK and Scottish legislation, it came as no great surprise that the Secretary of State for Scotland, Alister Jack, announced following the passage of the Bill that the UK Government would consider carefully its impact on UK legislation, and whether a Section 35 order (which would prevent the Bill gaining Royal Assent) would be necessary. This reflects the views of the Kemi Badenoch who is on record with her concerns about gender self-ID.
Predictably in the frenetic world of Scottish constitutional politics, even raising the threat of Westminster blocking a Scottish Parliament Bill provoked a furious reaction, not just from the SNP but even from some Labour MSPs. They were joined this week by no less a figure that the former Prime Minister Theresa May, who warned against such a move, fearing that it could fuel a rise in support for Scottish independence.
As a general rule, the SNP thrive – and tend to benefit from – conflict with Westminster. Opinion surveys of Scottish voters consistently tell us that Holyrood, despite its manifest failings, is consistently trusted much more than Westminster. The recent ruling from the Supreme Court that Holyrood can only legislate for another independence referendum with consent from the UK Parliament is credited by some commentators as pushing support for separation up over the 50 per cent mark (although the most recent poll shows support for the Union back in the lead).
Theresa May may be correct in her analysis, or it may be more driven by her previous personal sympathy for gender self-ID (in fairness, she was at pains to make it clear subsequently that she does not support the legislation). What she did not factor in, I suspect, is just how unpopular this change is in Scotland. Successive opinion polls have shown the public here opposed to the changes by a factor of more than two to one. The SNP have, unusually, lost the argument with the wider Scottish electorate on this particular issue.
There is a risk, certainly, that a cack-handed Westminster intervention might push public opinion the other way, but for now it is Kemi Badenoch and Alister Jack, not Nicola Sturgeon, speaking for the Scottish majority. A careful and considered approach in defence of women’s rights under the Equality Act might well chime with Scottish voters deeply concerned about the SNP’s rush to legislate in this complex area without proper thought as to the consequences.
Nicola Sturgeon describes herself as a ‘feminist to the fingertips’. It would be ironic indeed if her lack of concern for women’s rights were to damage the very cause that she has dedicated her life to.