Today, Friday 8 December 2023, we finally know the long-awaited decision on the September judicial review hearing in the Scottish Court of Session, initiated after the UK government blocked the Gender Recognition Reform (Scotland) Bill, using Section 35 of the Scotland Act 1998. The decision that there are, indeed, ‘reasonable grounds’ to believe that there would be an ‘adverse effect’ on reserved legislation – the non-devolved, UK-wide legal structures – is to be welcomed. However, this is not the end of the road. An appeal can be made first to the Inner House of the Court of Session in front of three judges, and ultimately to the Supreme Court of the United Kingdom. Thus it may still be some time until this matter is resolved – unless, of course, the Scottish government decides to accept the judgement.
The Bill would have enabled trans-identified people in Scotland to gain a Gender Recognition Certificate (GRC) without going through the process that was established by the 2004 Gender Recognition Act (GRA). No diagnosis of gender dysphoria would be required, and essentially it would be a matter of merely stating one’s wish to be regarded as the opposite sex, and a new birth certificate and a GRC would be yours for the asking. Unsurprisingly, one of the aspects mentioned in the UK government’s argument for invoking Section 35 is the possibility of fraudulent applications – in other words, that any man could gain a GRC purely because he wishes to be able to access female-only spaces.
Obviously, if anyone can claim a ‘legal sex’ that is different from their biological sex, many problems arise in terms of the Scotland/rest of UK border. The one most people will recognise immediately is the difficulty with the single-sex exceptions in the Equality Act 2010 (EA). These are already problematic, as the GRC provides a ‘legal sex’ at odds with biological sex. It would also make for difficulties regarding the ‘comparator’ in equal pay cases.
Further problems were identified with the Bill’s lowering of the age limit for obtaining a GRC to 16, which would affect single-sex schools among other things, and cause great problems were young Scottish GRC holders to move to England or Wales and wish to attend single-sex schools.
Although the worst has been averted by the judicial review decision, we do not yet know whether the Scottish government will appeal. While many would be appalled if the Scottish government decides to spend taxpayers’ money on an appeal, there is no doubt that the Scottish Greens, the ‘junior partner’ in the governing coalition, will push hard for this. Should the SNP refuse, it is possible that the Greens will withdraw, leaving a minority government. The way Scottish Labour responds will be crucial at this point.
Scottish Labour and UK Labour must understand the issues and have a clear way forward which acknowledges the danger of self ID, and demonstrates the role the Scottish party wishes to play. Whatever happens, the Party needs to have policies ready to implement that will address some of the complexities that remain, even without an unfavourable outcome. One obvious way forward is to support the UK government in clarifying the definition of sex in the Equality Act.
Time for Scottish Labour and UK Labour to listen to women
Over a year ago the Scottish Labour Women’s Conference passed a motion agreeing that open conversations are needed on the GRR Bill. No action was taken by Scottish Labour on this. Despite the repeated efforts of LWD Scotland to get anyone in the leadership to listen to our evidence and arguments, the party blundered into its disastrous and cynical support for the Bill last December.
Public opinion, however, has moved fast. All polling shows that Labour voters and Labour members, across the UK, support our positions on sex and gender. Scottish Labour is finally allowing a degree of free speech within the party, which will help more members to grapple with the questions, and reduce the fear so many experience, even thinking about these issues.
At this year’s Scottish Labour Women’s Conference, an excellent motion was passed calling for the Scottish party to support Keir Starmer’s new stand, including recognition of women’s sex-based rights, and encouraging debate within the Scottish party. This motion won the ballot to go forward for discussion at the Scottish Labour Conference in February. LWD Scotland plans to run a stall and fringe events there, in the different environment that hopefully now exists. Scotland, once again, may be leading the way forward with enlightenment views.
Given the UK Party’s decision not to support self-ID, and to recognise that sex and gender are different, Labour is now in a better position to manage the issues that lie ahead, so long as clear and workable policies around these issues can be established and if any reluctant MPs and party staff can be encouraged to recognise the realities and rally behind the leadership on this issue.
LWD Scotland and LWD will continue in conversations with both parties in the hope of further progress towards a General Election victory and a successful first term in government.
These conversations are essential right now if policies relating to sex and gender do not become hostages to fortune in the Party’s first term. If the party wins the general election without getting these policies right, it will be hampered by commitments to undeliverable promises. For example, a fear-mongering Conversion Practices Bill proposal will be one such millstone. There is no evidence of current need – given that laws already cover all that has been identified – and it risks negative effects on those in need of support and care, quite apart from probably being unworkable. The party needs to act now, and to produce a decent set of evidence-based policies which support women, and all those covered by the Equality Act protected characteristics – including lesbians in particular, and disabled women.
We look forward to Scottish and UK Labour developing their approach so that, whatever the future may hold around this Bill and the UK government, they can make coherent arguments and provide a good route through many of the complex issues.