By Russell Bruce and Molly Pollock
Many Labour party MPs in England support changes to make the acquisition of gender recognition certificates more humane. Lisa Nandy, no friend of Scotland or the SNP, has been vigorous in her support for self-ID. Speaking on LBC she went as far as saying convicted child rapist Zoe Lynes, now identifying as trans, should have his/her crimes recorded by his/her chosen gender. Nandy added: “Trans women are women and trans men are men and should be accommodated in the prison of their choosing”
This is not the situation in Scotland where controversial convicted rapist Adam Graham/Isla Bryson has been sent to a male prison as a convicted male rapist. Initially when on remand he was sent to Cornton Vale but kept in isolation. Under Scottish proposals no convicted sex offender would be housed in a women’s prison or would be eligible to gain a Gender Recognition Certificate to change their birth certificate. Scotland’s Gender Recognition Reform Bill has not become law due to the Tories blocking Royal Assent by using Section 35 of the Scotland Act 1998. This is a affront to democracy as the legislation went though 7 years of investigation plus two lengthy public consultations. The bill passed with the overwhelming support of MSPs from all parties, 86 votes to 39.
We know now Scotland can withhold legislative consent but Westminster can ignore the Scottish Parliament and go ahead and impose legislation on Scotland anyway. Now the Tories are using the ‘nuclear option’ of Section 35 to get their own way and to undermine Scotland’s parliament.
Nandy is not alone in arguing for reforms that go far beyond the Scottish bill. Rebecca Long Bailey, MP for Salford and Eccles, has vowed to change the Equality Act 2010 to stop women’s refuges excluding trans women. This is unlikely to happen in the event of a Starmer government. The Scottish bill allows refuges to make their own judgement or whether to admit a trans woman or not.
The opposition unionist parties are making out this piece of Scottish legislation is entirely due to the SNP. Had the 40 SNP MSPs supporting the bill not voted for it the bill would still have passed with the support of all the unionist parties, even a few Tories and all but 2 Labour MSPs. Starmer is not happy about that and is setting about curtailing ‘difference’ within Labour north of the Border. As regards Starmer’s opposition to age 16 it is well documented that Nandy supports reducing the age to 13 in legislation for England. The Scottish legislation was intended to apply to those 16 or over. In Scottish law people are adults at 16 and that was considered the right age for anyone wanting to change their gender identity to begin embarking on the process.
Back when Nandy, Starmer and Long Bailey were standing for leadership roles in the Labour Party listen to what they had to say on the issue of gender identity and support of self-ID.
Later on we will explain how and why the United Nations has backed the Scottish Parliament’s bill. But first to understand the history of Gender Recognition in the UK we need to start with the Gender Recognition Act 2004.
Gender Recognition Act 2004
What many people do not realise is that the law on Gender Reform as it stands today is the same in Scotland and England. Back in 2004, under Labour First Minister Jack McConnell, the Scottish Parliament gave legislative consent to Westminster under the Sewel Convention to legislate on its behalf on gender reform. The Blair Government introduced the Gender Recognition Act 2004. This act currently applies to Scotland, England and Wales and indeed to N. Ireland as well.
2014 review
In 2014, while Alex Salmond was First Minister, the Scottish Prisons Service complied with the requirements of the Equality Act 2010 in regard to the treatment of transgender prisoners with an operational policy document entitled Gender Identity and Gender Reassignment Policy for those in our Custody. This aimed at supporting a group of vulnerable prisoners with specific needs. Developed in partnership with the Scottish Trans Alliance (STA) and Stonewall, the policy circumvented the single-sex exemptions in the Equality Act 2010 and established a de facto mixed-sex estate, by enabling male prisoners who identified as women to be accommodated in the female estate on a case-by-case basis, subject to risk assessment, and vice-versa. This was aligned with the position in England at the time.
Under the Equality Act 2010, according to NHS Health Scotland, it is unlawful to discriminate against someone because of their ‘protected characteristics’.
Protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
A Legislative Consent Motion in respect of this Act was passed by the Scottish Parliament on 28 January 2010. The First Minister at the time was Alex Salmond. The Prime Minister was Gordon Brown followed by David Cameron under the 2010-2015 Tory/LibDem coalition government..
This is an extract from the policy document indicating the options the Scottish Prison Service should follow at that time.
Gender Dysphoria
Back in 2018 both the UK government, under Theresa May, and the Scottish Government intended to remove Gender Dysphoria from future legislation on GRA. The UK government said “Gender recognition is devolved to Scotland. That means Scotland can have its own system for gender recognition if it wants to” and including a commitment to work closely with SG on implementation of SG proposals, “especially on the implementation of its proposals where powers are not devolved, mutual recognition of certificates issues in different parts of the UK across the UK”.
The removal of the offensive term Gender Dysphoria, (which implies a ‘mental disorder’ in the same way homosexuality was once considered) as intended by the Scottish Bill, does not alter the Scottish Prison Service’s need to make a judgement on how to deal with trans prisoners through examining e.g. whether they have a history of violence towards women and their physical genital characteristics to determine how best they should be housed in the prison estate for the safety of themselves and other prisoners. The UK government announced a review on 25th January and the Scottish Prison Service is now also engaged in a review on assessing trans prisoners.
The World Health Organization (WHO) have said: “trans-related and gender diverse identities are not conditions of mental ill-health, and that classifying them as such can cause enormous stigma.”
Shona Robson, Cabinet Secretary for Social Justice, Housing and Local Government writing to Alister Jack, Secretary of State for Scotland, said about the use of Section 35: “You have said that you hope we can work together to find a constructive way forward which respects devolution and the operation of UK legislation. This seems utterly incompatible with your approach of waiting until after the Bill has been passed to implement a power of veto never used before, with no warning communicated about the use of that power or prior attempt to engage on the detailed issues now raised. Please would you clarify how the Scottish Government can work constructively with you under these circumstances.”
There remains no indication Alister Jack intends to engage.
Jim Gibson has provided a useful thread in relation the Equality Act 2010 on Twitter
The international context of gender identity reform
Far from the media, social, print and broadcasters, painting reform as an obsession of Nicola Sturgeon nothing could be further from the truth. Not only have many nations already adopted self-ID by introducing legislation they do so on the basis of human rights policy as agreed by and passed by the United Nations with the support of over 160 member nations. Far right nations and parties like Russia’s Putin and Hungary’s Orban have adopted a position of opposition to LGBT rights and gender recognition. Sunak’s government is opposed to the Scottish legislation on the same basis as others from the far-right. We understand that there are some who are concerned about the bill who would not consider themselves to be on the far-right. I would draw their attention to the comment of Aoife Martin at the end of this section that such gender identity reform legislation has nothing to do with women’s spaces. Newsnet is fully supportive of measures to deal with pretendy trans women who would misuse such legislation in attempts in ‘penetrate’ women’s spaces, including prisons.
Finland recently passed self-ID legislation with opposition coming from the far-right and some religious groups.
“Finland was one of the last countries in Europe that required trans people to be sterilised before legally changing their gender, but it has now joined over 30 other countries that have already adopted similar legislation, implementing leading international practices endorsed by the United Nations.” The legislation passed comfortably with support from government and opposition parties.
Spain approved legislation allowing gender changes by self-declaration last month. Pakistan has also followed in recent days.
Below are extracts from the United Nations report in support of the legislation the Scottish Parliament later passed, including powerful supporting argument from one leading Tory MSP.
The report was prepared by Victor Madrigal-Borloz, the United Nations Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.
“I presented expert testimony on the conformity of the [Gender Recognition Reform] Bill with international human rights standards in June 2022 to the Equalities, Human Rights and Civil Justice Committee of the Scottish Parliament.
“I have also observed exclusionary narratives in the public discourse surrounding the consideration of the Bill, and against trans persons more generally. In that context, I am particularly concerned about misrepresentation of the existing consensus within the bodies and entities of the UN Human Rights System about the international human rights imperative of legal recognition of gender identity, and the principle of self-identification. I am therefore writing to restate and amplify my advice. Within the United Nations Human Rights System, there is consensus on the imperative of legal recognition of gender identity and on the related standard of self-identification; it is my opinion that the Bill brings the Scottish system closer to conformity with those standards and, therefore, it is an act of compliance with obligations incumbent upon the State under international human rights law.
“The UN consensus: gender identity must be recognised by law, and implemented under a standard of self-identification. In 2018, I examined the full scope of the duty of the State to respect and promote respect of gender recognition as a component of a person’s identity, and to dismantle systems of pathologisation, stigma and prejudice that negatively impact the human rights of trans and gender-diverse persons. My mandate concluded that self-determined or self-identified gender is a fundamental part of a person’s free and autonomous choice in relation to roles, forms of expression and behaviours that are socially attributed to them, and a cornerstone of the person’s identity.
“In that sense, the process of legal recognition of gender identity is one that directly relates to the human right to recognition before the law, enshrined in the Universal Declaration on Human Rights (art. 6) and human rights instruments at global and regional level. Indeed, there is consensus among the UN Human Rights Treaty Bodies, UN Special Procedures, and the UN High Commissioner for Human Rights in relation to legal recognition of gender identity. UN Treaty Bodies and other mechanisms have consistently affirmed in their jurisprudence that, just like race, sex, colour or religion, gender and gender identity and expression are prohibited grounds for discrimination.” (our emphasis)
The full text of Victor Madrigal-Borloz’s report in support of the Scottish Parliament’s Bill can be sourced here
Many countries have adopted laws to accommodate non-binary gender identities including the provision for a third gender. The specifics vary from country to country but the following countries have established principles to deal with accommodating those who do not fit with the ‘constraints’ of male or female only genders or seek a legal means to change their gender: Argentina, Austria, Austria, Belgium, Brazil, Canada, Chile, Columbia, Denmark, Finland, Germany, Iceland, India, The Netherlands, Nepal, New Zealand, Pakistan, Spain, Taiwan, and Thailand. UK: Trans people have been able to change their passports and driving licences to indicate their preferred binary gender since at least 1970. Some US states have gender X markers for certain documents such as driving licences.
Ireland passed its gender recognition act in 2015. Aoife Martin, a trans activist, said she was so proud of Ireland for doing so. Aoife explaining what the Irish act does and what it does not do, which many opponents of the Scottish legislation have not understood, said: “There are so many lies being perpetuated about self-ID and what a Gender Recognition Certificate actually allows. It has nothing to do with bathrooms or changing rooms or access to women’s spaces. Mostly, all that a Gender Recognition Certificate does is allow a trans person to change their birth certificate and ensure that their death certificate will accurately reflect their gender identity.”
Hannah Bardell MP has taken the issue of trans rights and the blocking of the Scottish legislation by Westminster to the Council of Europe, demonstrating that Westminster is out of line with many other nations and the United Nations on this issue. The video she produced to explain the reasons is included in our conclusion at the end of this article.
Prisons
Stories are emerging about trans women in prisons who have a history as men with a violent past towards women. The Scottish Prison Service is reviewing procedures in regard to how trans women are allocated to prisons. Sometimes in the past that has been to a woman’s prison but they were normally allocated to a special trans unit within the prison service and are not able to mix with women prisoners. The case of 2 trans women with violent male pasts has brought this issue to the fore. The convicted rapist Adam Graham/Isla Bryson has been sent to a male prison and a second trans woman/violent male case is also expected to be sent to a male prison. The 2014 policy indicates the options available to the Scottish Prison Service to isolate individuals for their safety and that of others prisoners.
Measures to protect female prisoners.
Scotland’s Justice Secretary Keith Brown has announced the introduction of measures to ensure the on-going safety of prisoners while the Scottish Prison Service undertakes a review of the management of trans prisoners. The measures will be in place until the reviews are completed and will mean that no newly convicted transgender person with any history of violence against women will be placed in a female prison – including female sections of prisons traditionally used to house males – and any transgender prisoner with this history will not be moved from a male to a female prison.
The number of trans individuals in prison in Scotland is tiny. The numbers of trans prisoners as this table shows clearly indicates different decisions have been made according to the analysis of the risk trans prisoners might or might not pose for other prisoners. The majority of trans women pose no threat to other women.
In 2020 the Johnson Government announced they no longer planned to reform the Gender Recognition Act.
Scotland got no help from Starmer’s Labour
The Tories want to undermine the Scottish Parliament which is why they have used Section 35 to prevent the Gender Recognition Reform Bill from becoming law. Labour say they want to increase the Parliament’s powers but we have heard that time and time again, just as they have said, for over 100 years, they will abolish the House of Lords. When the Section 35 was debated at Westminster Labour Party MPs sat on their hands when their votes could have been seen as support for devolution and the Scottish Parliament. Eleven brave Labour MPs voted against the Section 35 order recognising it as an affront to democracy. Sole Scottish Labour MP, Ian Murray, was not one of the eleven.
Despite strong support among English Labour MPs for reforming gender recognition in England, Starmer is aligning with the Tories against the Scottish Bill that does not go as far as some Labour MPs are on record in arguing for in England. He is equally critical of Scottish Labour MSPs for supporting the Scottish Bill. Human rights lawyer Sir Keir certainly seems to have forgotten he is on record as supporting Self ID.
A Starmer Government?
Given the current opposition to the SNP, criticism of the Labour party Scottish branch office for supporting the bill and sitting out on anything that does not match Starmer’s move to the right in a pale imitation of the Tories, it seems unlikely a Starmer government would follow Scotland, the UN and other nations in bringing forward Gender Recognition Reform legislation. If it did, it would be unlikely to include the proposals of Nandy and Rebecca Long Bailey. Starmer is obsessed with his march to the right in emulation of many aspects of the Sunak government and his recent predecessors.
When the Tories are in such a state the rot is in danger of rubbing off on Starmer. It really begs the question if Labour under Starmer is any more in line with Scottish opinion than the present Sunak government as they are just as chained hand and foot to the economic disaster of Brexit. Scotland’s strong sense of being a European nation and desire to rejoin the EU is a crucial element in the campaign for independence. Starmer is committed to refusing indyref2 so only committed unionists would be likely to support Labour in Scotland at the next general election.
Starmer is a human rights lawyer yet he is determined Scotland will not have the human right to decide if this union is well past its use by date. Under Starmer Scotland will be stuck in a union that defies the right of the people of Scotland to determine their nation’s future. Starmer’s Labour is not a party Scotland has any reason to trust. The future Scotland aspires to under independence is a society committed to fairness, equality for all and prosperity that is of Scotland’s making. Neither the Sunak government nor Starmer offer the people of Scotland, whether those in minority groups or the majority of our people, the human rights of a truly progressive nation making all our decisions on our own terms.
Conclusion
Scottish Law is in many respect different from the law in England and that position is supposed to be protected by the Act of Union. No longer it seems. Some of the present differences are not as great as some choose to argue. The two most common and accepted forms of identification are passports and driving licences, both of which a trans person can obtain, in all parts of the UK, in their chosen gender without a gender recognition certificate. The same applies to bank accounts. No identification is asked for those using so-called women safe spaces such as toilets. Therefore how can any male who is so inclined be stopped from using a female toilet? So a gender recognition certificate is only really of use when a birth certificate is asked for e.g. when getting married.
The greatest risk to women is predatory men and it is clear that there are difficulties in prosecuting sexual assault in all societies. That is sometimes due to women choosing not to go through a trial which would add to the trauma of their assault. The number of trans women hiding their true sexual impulses is very small and there are clearly developing processes to root out those who would be a threat to women in prisons both north and south of the border.
Labour has become complicit is demonising the SNP for legislation they actually believe in, but have gone quiet on. That is not a party Scotland can trust anymore than a Tory party promoting right wing hate. The Scottish legislation is viewed by trans women as a major step forward. Trans women just want to live their lives as women and are no threat to other women. Self-ID makes the process more humane but does not alter the fact that it will still be a long and difficult process for them to fully complete their transition.
We conclude with this video by Hannah Bardell MP clearly setting out how the UK is far behind the rest of the world on legislation and continues to promote poisonous rhetoric on a matter of human rights affecting a small percentage of populations.
Note on acronyms : GRA -Gender Reform Act, GRR – Gender Recognition Reform
