The Tory case for blocking Scottish gender recognition

The Tories have published their Statement of Reasons for blocking the Gender Recognition Reform (Scotland) Bill. It is very thin. I hope it is not sufficient.

Can the Tories block Scottish gender recognition?

Could the British government block the Gender Recognition Reform (Scotland) Bill, due to go for royal assent next month? The Scottish government would challenge any attempt to block it, and probably succeed. This would increase support for independence.

Scotland supports trans self-declaration, Again!

Scottish civil society overwhelmingly supports trans recognition.

The campaign against gender recognition

Joanna Cherry’s article in the New Statesman (archive link) gives a handy summary of the myths and scaremongering used by the anti-trans campaigners to oppose trans rights. It starts with the headline.

“Our fears have nothing to do with transgender women,” claims Cherry. No, only “Predatory men” who could self-identify their way into women’s prisons, services and sports. She quotes a Scottish minister saying predatory men don’t pretend to be anything else, then swoops on it. Of course predatory men don’t admit they are predatory, often not even when in prison for rape, but what the Minister meant was that they don’t pretend to be women. If Cherry had any better arguments, or less trust in the blind prejudice of her audience, she would not have stooped to creatively misunderstand that as she did.

She does not address the fact that predatory men could self-identify their way into women’s services now. Trans women do not need a medical diagnosis to do so. We get in, under the Equality Act. The EHRC, before its institutional capture, said so. A medical diagnosis is impractical. Doctors know we are trans women because we believe we are women, want to be women, or want to be treated as women. Anyone might hear us say that, and be no less likely to tell future detransitioners from those of us who never do than doctors are.

A predatory man need only pretend to be a trans woman. No-one would ask him to show a gender recognition certificate, a diagnosis or even anything with a female name. Violent men push the door open, or attack women in the street. Deceitful men love-bomb and charm their victims, then increase their control carefully, grinding down the victim’s ability to resist. They don’t pretend to be trans.

Would a mediocre male athlete transition to compete against women, given the appalling hatred and vilification Laurel Hubbard faced? If so, a GRC would not let him do that. Sporting bodies can exclude “transsexual persons”, which includes those of us with a GRC, under the Equality Act 2010 s195, if it is necessary for fair competition or for safety.

Cherry says the Scottish Bill does not define “gender”. Well, the word is far more useful in academia than in law. Feminists can say that gendered expectations and treatment are patriarchal oppression, or talk of gender stereotypes, but in law you need only say that self-identified transgender women should be treated as women, which in effect is what the Equality Act does. Cherry refers to the Scottish appeal judges (the Inner House of the Court of Session) but unaccountably does not quote them saying that a trans woman without a GRC can truthfully say she is a woman, even where there is a public interest in truth and criminal penalties for falsehood.

The Gender Recognition Act was a step forward in recognising trans people’s human rights at the time, as required by the European Court of Human Rights, but only a tiny proportion of trans people have a GRC because it is expensive and humiliating to apply for one, as the Women and Equalities Committee report found. Cherry repeats the same tired old lies, despite them being refuted again and again.

Cherry claims 16 year olds need protection from gender recognition. But, they cannot get puberty blockers or cross-sex hormones without a recommendation from a psychiatrist and an endocrinologist, independent of legal gender recognition.

Finally, an MP and QC, supporting the policy of the Westminster government, apparently supported by the EHRC, who has cited billionaire author JK Rowling and mentioned social media being awash with arguments, writing in the New Statesman, though she could have chosen the Scotsman, Herald, Times, or Guardian, complains of the power of the trans lobby “silencing” critics. It would be funny if it were not terrifying.

Idleness .*oil on canvas .*111 x 73 cm .*signed b.l.: J. W. Godward 1900

Scotland supports trans rights

The Scottish government has published the results of their consultation on gender recognition, which is full of good sense about how making the process easier will improve trans people’s lives.

Court actions against trans rights

Millions of pounds are being raised and spent, attacking trans rights, and public bodies that have a reasonable view of trans rights, in the courts, forcing those public bodies to defend themselves. The aim is to make defending trans rights prohibitive, and to change the language, so that the word “woman” does not include trans women.

Arcane law having almost no effect on trans people in public life is attacked. That was the case in “For Women Scotland Limited” v Lord Advocate. The anti-trans hate group, with its disingenuous name, failed in its attempt to embarrass the Scottish government over the Gender Representation on Public Boards (Scotland) Act 2018. The judge, Lady Wise, in the Outer House of the Court of Session, said “This case does not form part of the policy debate about transgender rights, a highly contentious policy issue to which this decision cannot properly contribute”. The only legal challenge concerned the powers of the Scottish Parliament, and the interpretation of the power to make that Act itself.

Nor would the case, if it had been successful, have been likely to affect the life of a single trans woman. The 2018 Act provides that where a public board in Scotland has more men than women, is recruiting new members, and interviews candidates for membership who are otherwise equally qualified, a woman candidate should be preferred to a man candidate. For the purposes of that Act, “woman” includes a trans woman who is “living as a woman” and seeks to “become female”.

I don’t know how many positions on public boards there are, or how often candidates are equally qualified. Where candidates are equally qualified, interviewers can generally justify their choice by some reason to prefer one or the other, so perhaps the Act has never resulted in a choice of candidate being altered. Nevertheless, the hate group still wanted to challenge the rule, so that trans men would be treated as women under the Act, and trans women treated as men.

The Scottish Government negotiated an extension to its powers, and specifically requested power to make this Act. The Westminster Parliament duly amended the Scotland Act 1998 to give this specific power. Power to make law on “Equal Opportunities” and discrimination is reserved to Westminster, but there is now a specific exception in Schedule 5 of the Scotland Act to permit this specific Act.

The question before the court was then what was the interpretation of the Scotland Act, which refers to “the inclusion of persons with protected characteristics” on boards. Trans people have a “protected characteristic”.

If interview panels might rarely choose a woman over a man because they found them equally qualified, how much more rare would it be for them to find a trans person equally qualified with a cis person? Trans women “living as a woman” are about 0.1% of the female population.

The Equality Network intervened for trans rights, supporting the Scottish government and trans women. The judge found their submissions “detailed and helpful”. They argued that the concepts of “sex” and “gender” and the instances of discrimination relating to them were so interrelated that they could not be kept entirely separate. Many claims for cis women focus on socially constructed gender roles, such as responsibility for childcare. The Scottish Trans Alliance, a project within the Network, did the work. Here is their press release. They were supported by the Scottish Just Law Centre.

The Equality Network is a major campaign group for LGBT rights in Scotland. It won two “Campaign of the Year” awards for its campaign for equal marriage, the first in the UK. I take heart from the support of lesbian and gay allies against the bitter, but well-funded, hate groups.

The advocate for the Scottish Government stated that government policy was that transgender women are to be treated as non-transgender women unless to do so would be prohibited by law. She said that that reflected the recommendations of the UN Convention on the Elimination of All Forms of Discrimination against Women. “Trans women are women.” Technically, a “policy” needs an Equality Impact Assessment, so this is not formally a policy, just the attitude of the Scottish Ministers.

When the hate group claimed to be supporting the interests of trans men, the judge said “such people are visually and socially male and so not operating as women”. They would not want to be treated as women, even when it was a career advantage.

This is not a binding precedent, even in Scotland, but the judge pointed out that EU law acknowledges that trans people are to be included as being of the sex to which we intend to reassign- even before reassignment. This shows the haters are unlikely to succeed. In the European Convention on Human Rights, “transgender women will for practical purposes be indistinguishable from non-transgender women”.

There may be an appeal, to the Inner House of the Court of Session then to the Supreme Court. The haters’ pockets seem limitless. I hope they will pay the Scottish Government’s court expenses, but this is not yet decided. Still, in this case so far, the wealthy haters have lost. It’s a victory for all queer people.

The judgment is available here.

Will the SNP act against transphobia?

The SNP’s transphobia definition allows it to claim it opposes transphobia, but not to act against dangerous transphobia. Should the SNP discipline Joanna Cherry MP for transphobia? Yes. Does the SNP’s new definition of transphobia allow it to?

Cherry wrote a transphobic article for The National. I don’t know if the subs were deliberately satirising it with the headline “Joanna Cherry: How it’s possible to support rights of trans people AND women”. I don’t know if anyone is fooled by her claim to be a trans ally who has never said or done anything against equal rights for trans people, or thinks that such words allow her to be transphobic elsewhere.

Cherry is slippery. She is an advocate. She can be transphobic and leave herself a weasel denial. Cherry has received rape threats, and she implies though does not state straight out that these are from trans women. Her phrase is “young men who seek to deny biology”. She could, I suppose, claim that she is referring to cis men attempting to be trans allies, though I repudiate the allyship of any man who tweets a rape threat. But I infer she means trans women.

I have no problem condemning trans women who make rape threats, or any threats of violence. We are not a club, and I am not responsible for their wrongdoing- as the SNP definition states. “Accusing wider trans people [I think they mean the wider trans community, not fat trans] of being responsible for real or imagined wrongdoing committed by a single trans person or group” is transphobia.

The definition gives eight examples of transphobia, though it says transphobia is not limited to these examples. Also it does not say what should be done about transphobia. For that, you need to consider the SNP conduct standards, which I found in this document. It’s not an official SNP site.

Anent discrimination, the standards say,

5. No member may make racist statements in any context.
6. Every member has a responsibility not to discriminate in his or her conduct on the ground of race, colour, gender, religious belief or non-belief or sexual orientation.

The disciplinary committee can admonish, suspend or expel a member found to have breached the rules. It is up to them to decide what penalty is appropriate. There are no sentencing guidelines, as these are political decisions.

So, racist statements are specifically barred, which appears to indicate that sexist or homophobic statements are absolutely fine. Discrimination is barred, though is not defined. The Equality Act 2010 takes hundreds of sections and 28 schedules to define unlawful discrimination, and provide excuse for acts which would otherwise be discrimination, such as excluding a trans woman from women’s space in particular circumstances.

The first six examples are acts against an individual rather than acts against trans people as a group. They include assault, discrimination, bullying, outing, misgendering and deadnaming. I hear this is a step forward: trans people in the party report that the party did not challenge members who were publicly degrading, harassing and misgendering trans members. Probably, under the rule on gender discrimination, the Party could have acted against bullying of a trans individual in these ways. Everyone knows these things are transphobic, even if they deny it.

The seventh is transphobia against the community:

“Using dehumanising language about trans people or expecting trans people to participate in “debates” about their right to exist.”

There are two parts to this: first, dehumanising language about trans people. It should cover Cherry’s use of the term “male-bodied individuals” because of the purpose of that phrase, to instil fear of trans women and opposition to trans women in women’s spaces.

The second part concerns “debates about [our] right to exist”. It does not cover assertions about “sex-based rights”, or argument that trans women should all be excluded from women’s spaces. Such argument is clearly transphobic, because it intends to foment fear of and anger against trans people, as well as lesbophobic because it encourages misgendering of lesbians, hostility to them in women’s loos, and policing their feminine expression. It is not included in the definition. And if Cherry does not invite trans people to respond to her debating points, then her wild assertions are not included because of that.

What about falsehoods about erasing women’s experience? In the National article, Cherry wrote, “Recently advice was issued to midwives in Brighton that they must refer to “chestfeeding” rather than “breastfeeding”.

That is misleading. Brighton has “gender inclusion midwives” trained to support trans men and nonbinary people, but also gives information on breastfeeding. Chestfeeding only refers to trans men and nonbinary people.

Taking Cherry’s article at face value, you would think cis nursing mothers would be told about chestfeeding. That was never going to happen. She misleads in order to create the false impression that women are under threat, and that the reader is directly affected.

Cherry’s article is objectionable throughout. Trans people and our allies object to transphobia and for Cherry this is an “out of control” “backlash” against “scientific reality”. Cherry angrily rants against people opposing transphobia or seeking reasonable treatment for trans people.

I hope trans people and allies are combing Cherry’s tweets and articles to build a case that she is transphobic, and should be disciplined under SNP rules. But the rules themselves, and this new definition, do not make that easy. Perhaps that is the point of it. Sara Ahmed points out many diversity policies are written to claim the organisation is doing something, rather than to achieve change.

Why should the SNP discipline one of its MPs? Because she is a raging transphobe, spreading hate. But, she’s an MP, and disciplining her would make them look bad. These decisions are political, not moral.

Johann Lamont and Forensic Medical Services

Is there any place where a cis woman should be able to insist there is no trans woman, or is that transphobic? What about a medical examination of a victim of sexual assault or rape?

The medical examiner might have to take a semen sample from inside a woman’s vagina, or examine her internally for injury. The woman has been violated, and so is in a vulnerable state, possibly disconnected from her body, or flinching from touch. Should she be able to insist that the examiner is a cis woman?

In Scots law generally there is no distinction made between gender and sex. Both the Equality Act and the Gender Recognition Act use the words interchangeably, and after my GRC the GRA confirms that both my gender and my sex are female. The Victims and Witnesses (Scotland) Act 2014 allowed a woman to choose that the forensic medical examiner should be a woman, by saying the victim could choose the “gender” of the examiner.

Transphobes campaigning against trans rights have sought to create a distinction, saying that transgender people change our gender, that is, our presentation and our conformity to stereotypes, but not our sex, which is based on genes, gonads and genitals. I still have a Y chromosome, so they say my sex is male. Then they say I should be expelled from women’s spaces. This would change my life. I have been in women’s spaces for decades.

The purpose of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021, which came into force on 20 January, is to allow victims to seek a forensic medical examination from the NHS without needing to report the crime to the police. I would have hoped such a change could be made administratively, by changes to police, NHS and court procedures, but it was a Bill, taking months to get through Parliament.

Johann Lamont MSP introduced an amendment into the draft Bill, to change the word “gender” in the Victims and Witnesses (Scotland) Act 2014 to “sex”. She imagines that now, victims can specify that they want a cis woman, not just a woman.

I am not sure what practical effect that has. I want a woman to be able to get an examination where she is, in Ullapool or Lerwick as well as Edinburgh, ideally without an examiner being flown out from the city. But then, the examiner has to be able to stand as an expert witness in the High Court of Justiciary. I have no idea how many people are qualified to perform such an examination, and whether any of them are trans women.

Johann Lamont, that is, used a Bill designed to benefit victims of sexual abuse to enshrine discrimination against trans women in Scots law, and form a basis for an argument that there is a legal distinction between “gender” and “sex”, so that there could be further discrimination in future.

She does it from a clearly transphobic position. She signed the Labour Transphobes’ Declaration and said at the time

I have fought all my life along with my sisters in the Labour and trade union movement to ensure that women’s voices are heard, that our needs and rights are addressed, to end the inequality women face and to change women’s lives. The progress made by women has come from women organising together and refusing to be silenced. That is as necessary now as it ever was.

To characterise demands to exclude trans women as “addressing women’s needs” is deeply transphobic.

When the amendment went before Parliament, there was a disgustingly transphobic article in The Scotsman. The delusional transphobe hack who wrote it claimed that “women are fighting for the very right to exist”. That’s paranoid. She wrote, “Women and girls the world over are mutilated and murdered because of their sex, not because of gender stereotypes such as lipstick and high-heels”. Trans women are assaulted and murdered because we are trans women. She diminishes our very nature to the fetishist whim of wearing high heels. She sets cis women against trans women. It is one of the most transphobic rants I have seen. She quotes Lamont saying,

Women should be able to choose the sex of the person who conducts the investigation. This is a key test for the Parliament, which is committed to rooting action in the understanding of experience. Women courageously and powerfully spoke up so that others might fare better than them. The amendment is tiny but would be a huge step in listening to survivors. The committee was convinced. The Parliament should be too.

“Listening to survivors” means excluding trans women. Speaking up courageously means demanding that trans women be excluded. It is a horrifying paean in praise of hate.

I am not sure whether a trans woman should heed the desire of such a victim to have a cis woman examiner. It may just be my internalised transphobia suggesting that could possibly be reasonable, that the trans woman should stand aside. But, unquestionably, the motive for the amendment is transphobic hate. Transphobic hate now has an entrée into Scots law.

Transphobia in advertising

There was a transphobic ad in The Scotsman. I complained.

How gender recognition could change society

Gender recognition may cost people. An increase in the numbers of people obtaining legal gender recognition might increase the likelihood that a business would encounter a transitioned or transitioning employee or customer. This may require such organisations to incur costs in formulating policies. Or indeed costs in training staff.

I was black affronted at that. No-one should profit from blighted lives. If gender recognition encourages people to transition and live as ourselves, we will flourish and live better. So we will contribute more to the economy, incidentally. And if businesses encounter more transitioned people, we become familiar. People realise our eccentricity does not really matter. We might buy more from them.

This was from the business regulatory impact assessment for the Scottish Government’s gender recognition consultation. Yes, these things are dull, and occasionally they show us how others see us, as a potential problem. What if an employee says something rude? I might be liable to a court case! Oh, mercy-me…

The impact assessment on the Registrar General for Scotland, which would take over from the English-funded Gender Recognition Panel, suggests set-up costs of £300,000-£350,000, running costs of £150,000, and annual applicant numbers of around 250, extrapolated from Irish and Danish numbers. Scotland has around a twelfth of the UK population. In Great Britain there were about 2,500 applicants last year, a huge increase: in 2016 it was about 250, and there were only 4910 GRCs issued from 2004-2018. So even though we have to pay high fees and get medical certificates, and even though there was a promise of a simpler system, and even though it is purely symbolic and entitles us to nothing at all in itself, we are still seeking GRCs, and have reached the levels the Scottish government expects on a self-declaration system: this means the numbers expected all have specialist psychiatrist’s diagnoses. The idea that anyone seeking a GRC would not be a “real transsexual” is a myth.

The Scottish government is willing to spend £1000 per applicant for three years (factoring in the set-up costs) falling to £600 per applicant after that.

Under the current scheme there have been two appeals against a refusal to grant a gender recognition certificate, one in the High Court in England, which was successful. I have not found the Court of Session appeal.

Widows and widowers can get a pension from their deceased spouse’s pension scheme. When civil partnerships started in 2005, this right only applied to pension contributions made after 2005. Similarly with equal marriage: a gay marriage survivor of a deceased partner would only get a pension based on contributions since 2005. Less money if you’re gay.

However the Supreme Court reversed that in 2017. Pensions for surviving spouses are equalised.

Trans people are disadvantaged, but the Fairer Scotland Duty Assessment cannot state how many more of us are homeless or jobless than the general population. They do say that 53% of trans people, and 42% of cis people in Scotland, have an annual income less than £20,000. And among 35-44 year olds, 6% of cis people are not in education or employment, but 21% of trans people.

National Records of Scotland are proposing to include a trans status question in the 2021 census. TERF Joan McAlpine, MSP, intervened to ensure the question did not “conflate sex with gender identity” when the Bill was introduced in June, and TERFs are still huffing away about it now. The question is apparently not yet drafted, though “A binary sex question with self-identification guidance therefore supports participation for all people with the census and clarifies to data providers and data users the basis of the question.”

Having different fees for a GRC, for people with different income, could cost more in administration than the higher bands raised. If the Registrar decides to charge fees there will be yet another consultation.

There’s a Data Protection Impact Assessment on how data on gender recognition will be stored, at which point I finally glazed over.