Scotland’s reckless gender bill

Unnecessary, unworkable, and unpopular laws have become a bad habit for Scotland’s “progressive” establishment. In the last decade, political elites have cooked up various, ill-devised initiatives in consultation with their chic coterie of allies in the Holyrood bubble. There was the Offensive Behaviour at Football Act – famously described as “mince” by one Sheriff and repealed after a few years. The state snooper scheme, struck down by the UK’s highest court for trampling the human rights of Scottish families. And, most recently, the censorious Hate Crime and Public Order Act. All pushed through despite significant problems, in a cloud of right-on rhetoric.

To the consternation of many in Scotland, this harmful trend reached its zenith today with the passing of the controversial Gender Recognition Reform (Scotland) Bill at Stage 1. A majority of MSPs (88 to 33 with four abstentions) backed the “general principles” of the bill, meaning it has cleared its largest hurdle and is likely to become law. To understand why this vote is such a stain on Scottish democracy, we need to wind back the clock to 2004, when Westminster ratified the Gender Recognition Act. This legislation paved the way for a tiny number of adults in the UK struggling with gender dysphoria – a condition that leads to acute discomfort with one’s body – to legally change sex.

In order for to obtain a Gender Recognition Certificate (GRC), people need to meet certain criteria. In most cases, applicants must provide “evidence of a diagnosis of gender dysphoria and details of any treatment received; evidence of living in their acquired gender for at least two years; and a statutory declaration that they will continue to do so permanently”. These criteria were established for good reason. They reflect the fact that changing one’s legal sex is a serious, and life-altering decision that should not be made lightly. Requiring a diagnosis of gender dysphoria, proof of one’s commitment to a new “acquired gender”, and a solemn declaration also reduces the likelihood that those with nefarious intentions will abuse the law.

“Today, to the great consternation of many in Scotland, a trend for poor policy-making reached its zenith”

The Scottish Government’s gender bill would remove these criteria and, in effect, allow self-declaration of sex. If it goes ahead, Scots will be able to change legal sex after a short three-month “reflection period”, without medical oversight. Children aged 16 and above will also be eligible for the first time. Proponents of the bill, who care for struggling people, have accepted lobbyists’ arguments that the current process is too “intrusive” and slow. However, professional groups including the EHRC and grassroots campaigners don’t. They believe current provisions provide vital safeguards. There is deep concern that a self-ID system would fail trans people, erode women’s rights and undermine the safety of children swept up in a rising tide of gender identity theory.

Concerns about women’s safety are grounded in evidence from prisons and other jurisdictions showing that policies allowing a person to change sex without strict criteria have led to abuse. Men have identified as women in order to gain access to women-only spaces in the US, Canada, Scandinavian countries, and Ireland. The problem is, political elites appear to be unwilling to countenance such concerns. Scotland’s First Minister herself, and members of the Committee appointed to scrutinise the bill, totally dismissed the suggestion that the plans could be exploited. They claim a requirement in the bill for a person to sign a legal declaration is enough to stave off criminality. Critics aren’t convinced.

Fears about child safeguarding are shared by expert medics. This week, the Scottish Council on Human Bioethics stressed that “Scottish NHS doctors have a key role in caring for, and supporting, individuals with gender dysphoria” as they urged against removing medical oversight from the gender recognition process. The group noted that “many children with gender dysphoria have significant psychological and psychosocial vulnerabilities”, adding, “if the Scottish Parliament does accept the majority view of the Committee in removing the requirement of a medical opinion before gender transitioning takes place, this will certainly lead to some young persons being harmed”. This advice has fallen on deaf ears.

“Scotland’s political elites appear to be unwilling to countenance concerns about a threat to women’s safety”

There’s also trepidation about how a system of ‘self-ID’ will interact with wider trends in society, There has been a huge spike in referrals to ‘gender identity’ clinics, where children are quickly labelled trans and placed on an escalator to controversial interventions – experimental drugs and irreversible surgery. A review of policies at England’s Tavistock clinic found that medical best practice had been jettisoned in favour of an unquestioning, “affirmative” approach. “Detransitioners” who say they were harmed by the transition process are speaking out in droves. In such a context, a liberalised system of self-ID could further normalise gender transition and encourage more young people to make life-altering decisions. None of this has been accounted for by Scottish Ministers.

In today’s debate, a small number of MSPs highlighted some of these issues in the chamber. Nine SNP MSPs bravely defied a party whip on the vote, with seven voting against the bill and two abstaining. SNP Minister Ash Regan also resigned from cabinet saying her conscience could not allow her to vote with the government. For the greater majority of MSPs, however, constituents’ views and expert evidence have been pitifully ignored. As with previous debates, signalling loyalty to progressive tenets has been counted more important than anything else. Political elites in Scotland continue to operate in a way that is damaging for the country as a whole.

If the remaining parliamentary scrutiny of this bill is anything like it was for other contentious policies in the past, we can expect few meaningful concessions. I predict that sensible amendments will be lazily dismissed as “not valid” or motivated by some kind of ‘phobia’, with wholly improper legislation the inevitable end result. If the Gender Recognition Reform (Scotland) Act is not struck down by the courts, it will lead to demonstrable harms for years to come. Women in Scotland are angry about this tonight. Parents are angry. I’m angry. We, the electorate, deserve far, far better.

Jamie Gillies is a Scottish campaigner and journalist focusing on social policy

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