Scotland’s gender bill is a trivial distraction from the political reality
Close study is often required to divine the meaning of Martin Rowson’s elegant cartoons in The Guardian. Nobody said it was easy. In this week’s illustration Martin’s point was sharp as a crystal dagger. The premiers of the UK and Scotland are standing on the rooves of grid-locked ambulances waiting outside hospitals as the placards of protesters poke up around them. “Um… fancy an easy culture war instead?” Rishi Sunak shouts across to Nicola Sturgeon. “You’re on!”, the first minister replies.
The raging argument over the rights of women and trans people has now been blended with the perennial constitutional obsession “who rules?” which has long obsessed Westminster and Holyrood. For politicians it makes up a tantalising and potentially explosive mixture, which has already sparked mini-eruptions in debating chambers. There are no simple answers to either issue, which means that they amount to an “easy” distraction for our legislators. Shouting about gender and independence is easier than confronting the problems which really trouble the voters, such as the cost of living, health, housing, education, housing and the environment.
Opinion polls in Scotland repeatedly show that the Gender Recognition Reform (Scotland) Bill (GRR) is not even in the top ten matters of concern to voters. Only about one in eight consider it a pressing concern. Yet this is the dividing line in the borders over which the Scottish Parliament has chosen to take on the pre-eminence of UK law. Nicola Sturgeon is hoping that it will turbo-charge the SNP’s stuttering campaign for independence.
Unfortunately for her, and for the Sunak government which has swiftly taken up her gauntlet, there are likely to be no outright winners in this conflict – least of all the general public whose concerns are further side-lined. The first skirmishes have already turned the battlefield into a boggy morass, strewn with pitfalls, in which everyone, and every political party, will be a loser.
Not everyone in the SNP is convinced of the wisdom of rallying the crusade for independence behind a banner which has only minority support, however fervently General Sturgeon waves it around. According to Professor Sir John Curtice of Strathclyde University “voters are two or three to one against” the three main provisions of the GRR, which make it easier to self-identify a change of gender without medical certification, after a few months, and from the age of 16. The only thing they back is making it a criminal offence to fake it.
The bill’s passage through Holyrood led to unprecedentedly lengthy debate. There were rival demonstrations in which the Scottish authorities blatantly favoured trans activists. Ash Regan, the Community Safety Minister, resigned. Defectors to Alba, the breakaway nationalist party set up by former first minister Alex Salmond, included the SNP’s former women’s and equalities conveners.
The SNP suffered its most significant parliamentary rebellion since coming to power in 2007 but the GRR passed with the strong support of the Greens, Sturgeon’s coalition partners, as well as from Scottish Labour MSPs who were whipped to back it, and some Liberal Democrat and Tory MSPs.
The UK’s recent prime ministers were assets for the SNP. To many Scots Boris Johnson epitomised out-of-touch, absentee, English, public schoolboy, Tory rulers with no links or interest in their country. Liz Truss rode the wrecking ball with her comments that Sturgeon was an attention-seeker best ignored. The very English Theresa May never got to grips with the Union. David Cameron complacently fumbled Indyref One.
Sunak set out to do things differently. He flew to Inverness early in his premiership to dine with Sturgeon. Rhetoric and point-scoring were left out this week as the Scottish Secretary Alister Jack calmly invoked Section 35 of the Scotland Act 1998, which established devolution with the backing of the SNP. Jack cited the 2010 Equalities Act, introduced by Labour’s Harriet Harman, muttering, “We can’t have two gender recognition regimes in the UK”.
This was the first time a UK government has deployed the Scotland Act directly against Holyrood, without leaving it to the courts – even though the courts are where it will end up.
The Westminster government now enjoys the unpresented support of feminist groups including Women for Scotland and Women Won’t Wheesht, as well as some leading nationalist bloggers.
Sturgeon duly denounced “an outrage” and the weaponisation of “one of the most marginalised groups”. Opening up what looks like a second front to her so-far unconvincing campaign to have the next election seen as a de facto referendum on independence, the First Minister called out “a full-frontal attack on the democratically-elected Scottish parliament”. She will have to work hard win over public opinion on both lines of attack. In the most recent British Social Attitudes survey the proportion of the public who agreed transgender people should be able to change the sex on their birth certificate fell, from 58 per cent in 2016 and 53 per cent in 2019, to 32 per cent in 2021. For the first time more people, 39 per cent were opposed. Meanwhile Survation’s latest survey of the Scottish mood for independence has fallen back recently to 46 per cent in favour 54 per cent against, statistically close to the 45/55 referendum vote in 2014.
The Prime Minister would like to keep the GRR row to the constitutional question, especially since Sturgeon has already lost a major case on authority in the UK Supreme Court, while the preponderance of Scottish legal opinion is that she is onto another loser.
Sunak’s government is reluctant to stoke culture wars. Channel Four has been spared from privatisation and ministers have taken to saying polite things about the BBC. But the Conservative Party is by no means united on gender recognition. Progressive voices are already invoking memories of Clause 28, intolerant attitudes to homosexuality, and “the Nasty Party”. Theresa May, the then-party Chair who coined that phrase, is sympathetic to the GRR. Gillian Keegan, the Education Secretary and rising star, has stated that 16-year-olds are ready to self-identify. Suella Braverman, the Home Secretary and Kemi Badenoch, the equalities minister, take a different view. The Tories’ harshest critics suggest that the Scottish stooshie is a smokescreen to cover what the simultaneous, and in their view more illiberal, announcement that trans gender counselling will now be included in the ban on conversion therapy, contrary to the plans of the Boris Johnson regime.
On the Tory side of the House the feminist argument dominates that trans self-ID threatens women only spaces. The Labour opposition is divided. This is why “What is woman?” has become a gotcha question which most MPs, from Sir Keir Starmer downward, struggle to answer. No sooner had Starmer ventured cautiously that he thinks 16 might be too young to self-identify than the shadow cabinet minister Lisa Nandy publicly disagreed with him. The Tory MP Miriam Cates was viciously denounced by the Labour MP Lloyd Russell-Moyle during the Section 35 debate. He and others, including former Cabinet Minister Ben Bradshaw, also heckled the Labour MP Rosie Duffield. Labour men shouting down Labour women, not a good look.
Advocates equate their campaign for greater trans rights to the civil rights battles for women and against racial discrimination. Others do not accept this analogy because of the statistically tiny proportion of people directly involved and because of the potential legal knock-on adversely affecting the rights of women. These complex, but comparatively insignificant matters, will not be helped by ugly debates nor by the opportunistic elevation of the GRR into a constitutional confrontation. Meanwhile ambulances will go piling up outside hospitals North and South of the border.
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