The United Kingdom is once again engulfed in civil war, and the issue causing the conflict is unrelated to Brexit. This time it’s a bitter dispute between the Scottish National Party (SNP) government in Edinburgh and the Conservative government in Westminster over the Scottish gender reform bill, which is causing tremors across the British Isles.
In December, MPs in the devolved Scottish Parliament voted in favor of the Gender Recognition Bill, by 86 votes to 39, despite strong opposition from feminists and other human rights campaigners.
The draft law actually proposes a “self-identification” or “declaration” system for trans people, which would replace current legislation that requires trans people over the age of 18 to “prove” they have “lived in their assigned gender” for two years and create two medical reports – including one signed by a doctor from a list of suitably qualified and experienced medics – to legally change their sex.
Had it not been blocked by Westminster, the new law would have allowed anyone over the age of 16, born or living in Scotland, to change their gender legally within just six months and without the need for an official diagnosis of gender dysphoria.
Under this regime, if a male person identified as female, he could apply for a GRC (Gender Recognition Certificate) and become, for all legal intents and purposes, a female. In most cases, this would give them direct access to women-only spaces and facilities such as prisons, hospital wards, domestic violence shelters and rape crisis centres. They could also apply for jobs intended for women under the Equality Act of 2010. In short, if enacted into law, this bill would effectively render null and void women’s hard-won sexual rights and protections.
Concerns about the bill’s likely impact on women’s rights prompted the British government to block the bill citing a conflict with the UK’s Equality Act. The decision – which marked the first time an administration in London has used a so-called “section 35 order” to block legislation passed by the Scottish Parliament – has drawn outrage from both transgender rights activists and Scottish nationalists.
Scottish nationalists are asking why a decision made by Scottish MPs in Scotland, which would only be relevant to Scots, concerns the UK Parliament. Is it really his business?
The answer to their questions is actually very simple: if enacted into law, this bill would have an impact, not only in Scotland, but throughout the United Kingdom.
Around 15,000 Scottish-born children aged 16+ are currently attending school in England and Wales. Under the new law, any of these children could use Scotland’s legal gender reassignment system while still at school. This would force all authorities and institutions in England – including their school – to recognize their acquired gender without question. The same would apply to any Scottish person with a GRC traveling to England or Wales to work, live or receive medical care.
The UK government has scrapped self-identification for England and Wales in 2020. Allowing Scottish gender recognition legislation would introduce self-identification into those territories through the back door.
As Westminster and Holyrood continue to clash over draft gender recognition bills, trans rights campaigners in both countries say the whole ordeal is a Conservative attack on trans people. They insist the bill would do nothing more than allow trans people to avoid going through a “bureaucratic nightmare” to be recognized as their “real selves” in law. They say that trans people without a GRC can already access most women-only venues in the UK under existing legislation, so introducing a self-identification system would do no one any further harm. They claim that the concerns expressed by many women about opportunistic sex offenders potentially exploiting the self-identification regime to gain easy access to women-only spaces are just a “dog whistle” for “transphobia”.
But women in Britain are already suffering from male-bodied people trying to gain access to women-only spaces, and thus vulnerable women, by saying they identify as women. And it is clear that a self-identification regime adopted in Scotland would exacerbate this problem.
Consider convicted male sex offenders who identify as women seeking to serve time in women’s prisons.
In 2014, the Scottish Prison Service (SPS), in partnership with trans activist group Scottish Trans Alliance, introduced the Gender Identity and Gender Reassignment Policy, which advises that, where an individual is permanently living in a gender different from that assigned at birth, “institutional assignment it should usually be the new gender they live in”.
This policy has already resulted in convicted male rapists being held in women’s prisons where they can continue to harm women. Adam Graham, who is now known as “Isla Bryson”, is one such rapist.
In England and Wales the policy is different – there is no obligation to transfer transgender prisoners according to their wishes – and most transwomen in prison are in male prisons. However, even that hasn’t stopped male-bodied predators from gaining access to women’s prisons by claiming to identify as women. In 2018, it was revealed that a male-bodied sex offender who identifies as a transwoman, “Karen White”, was placed in a women’s prison in England and committed further acts of sexual assault and harassment there.
In light of these examples, it is impossible to argue that self-identification legislation such as that proposed by the SNP government would not be abused by male predators looking to game the system and harm vulnerable women.
The likes of “Isle Bryson” and “Karen White” are already being placed in women’s institutions to the detriment of women. The introduction of a self-identification regime, which would allow any man to simply declare that he is a woman and be recognized as such by law, would undoubtedly exacerbate the problem.
After weeks of passionately defending the bill and even rejecting proposed amendments that would have banned rapists from identifying as women while awaiting trial, Scotland’s First Minister Nicola Sturgeon now appears to have recognized the problem.
When asked whether “Isla Bryson” should be considered a woman or not, Sturgeon replied: “I think that rapist should be considered a rapist. That’s what I think.”
“That person was convicted of rape and that is therefore the terminology. I won’t go into the individual circumstances of that person’s claim to be a woman because I don’t have enough information about that.”
Sturgeon is apparently at least keeping an open mind about the validity of Bryson’s claims that they are women, and thereby ignores the entire basis of her new law – because the whole point of self-identification is that if a person claims to be a woman, they are a woman.
Moreover, after a massive public outcry and warnings not only from British feminists but also from international experts, the Sturgeon government began to move away from the idea of unconditional self-identification. Convicted rapist “Isla Bryson” was transferred from the women’s prison where he was originally held and sent to a men’s facility. The SNP’s justice secretary also announced a temporary ban on convicted sex offenders (as well as those with any history of violence against women) in women’s prisons. The SPS is conducting a review of the management of transgender prisoners – but it’s all too little, too late.
The fact that the demands of these sexual predators have always been prioritized over the safety and well-being of women shows how little regard many politicians have for women who have no choice but to live on the sharp edge of their so-called “trans-inclusive” policies.
Of course, we should all support trans people and their demands to live safely as equal citizens in this country. But when the adaptations made for transwomen are misused by male-bodied predators to harm women, it’s a disaster. There is a conflict of rights and we need to protect women – and we need to find a way to do it without allowing trans people to be victimized by bigots.
So what is the solution?
Back in the 1970s, when I came out as a young lesbian, trans people were my friends and natural allies. That’s how it should be. We who live on the margins of society and are discriminated against should watch each other’s backs. In this bloody battle we are all victims.
Ultimately, because allowing anyone who claims to be a transwoman access to single-sex spaces is a recipe for disaster, we need to help build a third space. Feminists, myself included, have offered to help transwomen build specific services for those experiencing male violence – such as domestic violence, abuse and sexual assault. After all, women-only services designed to protect women from male violence were built by the early pioneers of the Women’s Liberation Movement (in the UK and the US) back in the 1960s and 1970s, without help or funding from governments. Maybe it’s time for trans people to do the same. I suspect that the help of government agencies will come and that everyone, except opportunistic sexual predators, would welcome such an initiative.
The views expressed in this article are those of the authors and do not necessarily reflect the editorial position of Al Jazeera.