The Gender Recognition Reform (Scotland) Bill (the Bill) is a piece of legislation which simplifies and demedicalises the process by which trans men and women in Scotland can obtain legal gender recognition via a Gender Recognition Certificate (GRC), which allows them to change the sex marker on their birth certificate.
Legal gender recognition is an existing right which has been available since 2004, and the Bill does not change the effect of a GRC or introduce new rights for trans people, it simply allows them to change their legal gender on the basis of self-determination. This means the applicant giving a solemn and serious statutory declaration (a common legally binding mechanism similar to an affidavit) to a solicitor or justice of the peace that they intend to live in their “acquired gender” for the rest of their lives and have already done so for a minimum time period. It does not, as opponents have tried to claim, allow just anyone to declare that they are a different gender
The current system for obtaining a GRC is totally unfit for purpose, and fails to provide many trans people with access to the right of legal gender recognition. It involves a diagnosis of gender dysphoria, a minimum two-year waiting period (though in reality this can be more like 3-5 years given waiting times for accessing gender identity healthcare to receive a diagnosis) and requires a person to make an application to a Gender Recognition Panel – a UK tribunal comprised of lawyers and doctors who never meet the applicant, and who pass judgment on a person’s identity without any right of appeal. This has been described as invasive, demeaning, onerous and dehumanising by trans rights groups, and is significantly outdated in comparison to international best practice (self-determination) as outlined by multiple bodies including the UN and the World Health Organisation, who haven’t recognised gender dysphoria as a mental disorder since 2019.
The Scottish parliament passed the Bill with over a two-thirds majority, and with cross-party support from members of every political party in the chamber. This followed six years of public consultation and numerous Parliamentary evidence sessions, making it one of the most consulted-on pieces of legislation in the history of the Scottish Parliament. It does not affect reserved legislation such as the Equality Act 2010, which still applies precisely as it does under the current system. Indeed a Labour amendment was accepted and placed on the face of the Bill which states that for the avoidance of doubt, the Bill does not modify Equality Act.
Single-sex services catering to women have the option under the Equality Act to exclude trans women (with or without a GRC) from women’s services on a case-by-case basis if to do so would be a proportionate means of achieving a legitimate aim. The Bill does not change this, and organisations would still be able to use those exclusions. It is worth noting however that Rape Crisis Scotland, Women’s Aid and Engender all gave evidence in strong support of the Bill, and gave the view that it would not make any change to their already inclusive policies – no one in Scotland has to show a birth certificate to access a rape crisis centre or a hospital ward, and never has.
Despite all this diligence and care, and the obvious will of the Scottish people, the UK Tory government has chosen to use section 35 of the Scotland Act 1998 to veto the Bill by blocking it from being submitted for Royal Assent and thereby preventing it becoming Scots law. This unprecedented and undemocratic action is one of the most serious constitutional issues to have arisen since devolution, and has provoked outrage. At the very least it makes a mockery of the concept of devolved government if the UK Parliament can veto any bill they do not like, even if it is wholly in relation to matters devolved to the Scottish Parliament.
Many commentators have said that this overriding of the Scottish Parliament’s authority signals an absolute guarantee of Scotland gaining independence. So why would the Tories risk something which they have vehemently opposed (most notably by refusing to allow a second independence referendum) in order to veto a very short Bill which introduces measures comparable to those already in place in multiple jurisdictions including Norway, Belgium, the Republic of Ireland, Malta, India and some states in the USA? Especially when there is no evidence at all from these countries to show that using a self-determination model for legal gender recognition causes any increase in risks to women or girls, and simply allows trans people to live, marry and be buried with dignity in their affirmed gender.
The answer is clear:
The Tory Government has managed to produce a huge economic and social crisis where many workers are on strike just so they can heat their homes, put food on the table, and clothe their families. The use of food banks has rocketed, excess hospital deaths are at more than 500 per week, and essential care services are falling apart increasing pressure on an already failing NHS service. The NHS is not failing through bad management within the service, but through chronic under-funding and a disastrous management of the economy by this Tory government. At the same time huge tax breaks have been given to private schools, energy companies, and city bankers meaning the rich are getting richer while the hard working British citizen is struggling with an energy crisis and a cost of living gap too huge to bridge.
Amidst all this economic carnage, what better than a manufactured culture war against a tiny misunderstood minority using the false flag battle cry of anti-woke and protection of women and children? The compliant right-wing media headlines will once more focus public attention away from the economy and onto this constructed constitutional crisis and the ongoing demonisation of trans and non-binary people.
We must not be fooled by this tactic of distraction. Self-ID for trans and non-binary people is accepted best practice and demonstrates no increased dangers when it has been introduced elsewhere around the world. Indeed, the Scottish Parliament’s Bill was only a first step on the path to properly enshrining the rights of trans people and is hardly world-leading; the Bill made no provision for legal gender recognition of non-binary people, which is absolutely vital to ensure all people are able to live in dignity as their authentic selves, and must be urgently demanded of both nation’s governments by the labour movement.
The Broad Left Network and the wider PCS union are absolutely clear in their support for trans rights, as is demonstrated year on year by our support for trans inclusive policies at Annual Delegate Conference. Recent attempts by “gender critical” groups to weaken support for our trans comrades within our trade unions and wider society must be rooted out and rejected. Questions about the validity of trans lives have been allowed to drive a wedge into society under the guise of “legitimate concerns”, and we can now see the fruits of that in the disgusting and transphobic so-called debate around the Bill.
Trans lives are not up for debate. Trans people are valid, they are welcome, and they are deserving of the same rights as anybody else. As one trans person who told Scottish Parliament the heartbreaking story of not being able to marry their partner before they died due to the failures of the current system put it: “Reforms are badly needed…it would have allowed me just to be ordinary, which is all we ever wanted.”
The blame for any constitutional crisis must be laid squarely at the door of the UK Tory Government, and we must keep up pressure to remove them from office just as soon as possible for their utterly destructive and inhumane handling of the British economy which has put so many hard-working people into poverty. We must never forget that it is they who have led us to the place where children are going hungry, people are dying needlessly, pensioners are freezing in their own homes, and workers cannot earn enough to cover basic bills when working full-time.
At the same time, the Tories’ friends in big business are making obscene record profits for themselves and their share-holders. This is the same Government who slash public spending, thereby beggaring the very services that provide the healthcare and support for women that they so desperately and dishonestly claim to champion as they stick the boot into trans people. This is where truly legitimate concerns should be focused – on the consequences of successive austerity governments and parties on local authorities, starving our public services, facilities and amenities, causing the poverty and deficiencies that serve to fuel the fire of this debate.
The right wing used the same arguments against equal marriage and the repeal of section 28 as they are using today against gender recognition. Reject it, and reject the hate-filled austerity politics inherent in the functioning of capitalism.
PCS Broad Left Network 