Humza Yousaf’s decision to spend perhaps half a
million pounds challenging the UK Government over its blocking of the SNP’s Gender
Recognition Reform Bill looks odd because the SNP itself admitted that the bill
depends on the UK Equality Act 2010. The reason that it is important who can
obtain a Gender Recognition Certificate (GRC) and in what way is that having a
GRC provides the holder with rights under the Equalities Act and prevents them
being discriminated against on the grounds of transgender.
We know that the Scottish Parliament is a devolved parliament.
That after all is what Scots explicitly voted for when it was set up. It is
also what we voted to retain when we turned down the offer of a non-devolved
parliament in 2014. We already know that the Scottish Parliament cannot
legislate on reserved issues. This is what the Supreme Court told us last year
in its decision regarding allowing the Scottish Parliament to legislate for an
independence referendum. It cannot. But the principle of the Scottish
Parliament being not allowed to legislate on an issue that would affect the
other parts of the UK is essentially the same.
But it obviously would affect how the Equalities Act
was applied if people in Scotland could obtain a GRC without a medical diagnosis
of gender dysphoria and could obtain one at 16 with a minimum of questioning
and no proof whatsoever that the person was indeed transgender.
A Scot with a GRC obtained in this way would be able
to go into a woman only space anywhere else in the UK and could sue for
discrimination if denied a service only open to women. The fact that the
Scotland Act has a section 35 that allows the UK Government to block Scottish bills
that affect UK legislation means that this too is what we voted for. It is
therefore not undemocratic. It is a feature of having a devolved parliament.
But there is another reason why Yousaf’s legal
challenge looks odd. Not only will it be expensive, it will be pointless.
The UK Government looks as if it is about to change
the Equalities Act in a way that will make the rights connected with being a
woman or a man sex based. It is for this reason that Rishi Sunak has recently
said that people with penises cannot be women.
If this is true, then Rishi Sunak’s government must change
the Equalities Act. This act allows transgender people to change their birth certificates
and allows them in most cases to be treated as if they really were the gender
they had transitioned to. For this reason, if there were a women’s only short
list it would be discriminatory to exclude a transwoman even if s/he had a
penis.
But if being a woman is defined in the equalities act biologically
and objectively as being the female sex, then this will make Scotland’s Gender
Recognition Reform Bill pointless.
At the moment we allow a distinction between sex and
gender. This transwoman is male, but s/he is a woman. It is on the basis of
transitioning from being a man to being a woman that s/he is deemed in law to
actually be a woman just like every other woman.
We have then male women and female women. But if Rishi
Sunak makes the Equalities Act say that only female women can go into women’s
changing rooms, only female women can be rape crisis counsellors and only
female women can be discriminated against if they are not allowed into a women’s
space or a women’s job, then transwomen will gain nothing from having a GRC.
Once you admit that women cannot have penises, then
essentially the whole transgender argument collapses. Women’s rights from that moment
will only apply to female women, transwomen will no longer be allowed to take
part in women’s sport, do women’s jobs or expect indeed to be treated as women
at all.
What will be left for transgender people will be that
they won’t be allowed to be discriminated against because they are transgender.
That is right and proper. It is none of the rest of our business how someone
identifies. Let him identify as a woman if he pleases. But it will no longer be
discriminatory to fail to treat a transwoman as an actual woman.
But this undercuts the Gender Recognition Reform Bill
because it makes the process of obtaining a GRC pointless. If it no longer
offers you the key to the door of women’s spaces, if it no longer lets you take
part in women’s sport or do women’s jobs, what really does it do? Nothing much.
It allows you to say that I am a transwoman, which will prevent you being
discriminated against because you are trans, but it you don’t need a GRC to prevent
such discrimination now any more than you need a certificate to say you are a
homosexual. The Equalities Act says you cannot discriminate against transpeople,
having a GRC has nothing to do with it.
It is the Equalities Act that is the root of the
problem with transgender, because it suggested that you literally could change
sex and change the sex you were born with by changing your birth certificate.
Having done that, you would in nearly all circumstances be treated as a woman
even if you had a penis. Anyone who said you ought not to be in the women’s
changing room, the women’s toilets or a woman’s job could in most circumstances
be charged with discrimination.
But if women cannot have penises and we decide who is
really a woman or a man objectively, then in essence transwomen will be treated
as men, because they are male, and transmen will be treated as women because
they are female. We will allow people to transition if they choose, but their
sex and indeed their gender will be determined by their bodies rather than
their minds. What you want to be will drop out of the equation, leaving what
you are.
This really destroys the whole trans argument, because
it allows us to say to a confused boy who thinks he is a girl, that he is male and
there is nothing he can do to change this. It allows us to say to a confused
girl who thinks that she is a boy that even if you cut your breasts off and
have surgery to give you an imitation penis, you will never really be a man.
It allows us to say transwomen are men. You will not get
access to women’s spaces even if you cut your penis off. You will always be a
man. It makes transitioning unattractive.
We cannot sensibly have one part of the UK saying that
this person with a penis is really a woman, while another part says s/he is
really a man. The Equalities Act is UK legislation, without it the Gender Recognition
Reform Bill gives trans people pieces of paper that are worth nothing. Worse
changing the Equalities Act to make it based on objective sex completely undermines
the purpose of the SNP bill which makes spending hundreds of thousands to
unblock it an empty gesture. Almost as empty as trying to become what you never
can be.
