Euan McColm: SNP to blame for gender debate getting messier still

The reaction from the SNP was entirely predictable. This was an attack on the Scottish Parliament, an attempt to undermine the very principles of democracy. It would, of course, hasten the break-up of the United Kingdom.

When Scottish Secretary Alister Jack announced last week that he would invoke section 35 of the Scotland Act to block legislation making it easier for people to change their recorded sex, outrage was overwhelming.

So far as the SNP and the Scottish Greens (and some Labour and Liberal Democrat members) were concerned, Jack was motivated by a desire to strip Holyrood of powers. And by prejudice. That, too.

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But, either way, whether this was a power-grab or an act of anti-trans bigotry, the main thing was that the Scottish Secretary had done something indefensibly terrible.

Scottish Secretary Alister Jack has issued an order preventing the Scottish Parliament's Gender Recognition Reform Bill from becoming law (Picture: Rob Pinney/Getty Images)

Jack’s explanation for his decision - that a change in the law in Scotland would impact on the provisions of the Equality Act elsewhere in the UK - was dismissed as a poor excuse.

It has become crystal clear in recent years that plans to reform the gender recognition act (GRA) - introducing self-ID for those applying for a gender recognition certificate and reducing the age at which one might legally transition from 18 to 16 - fall firmly into the category marked “controversial”. Opinion is firmly divided on the subject, with supporters of change seeing it as righteous and necessary and opponents believing it will negatively impact on existing legislation guaranteeing the provision of some same-sex spaces.

When it comes to reform of the GRA, passions run high.

It’s certainly true that such passion can be a catalyst for change. There is nothing unusual or untoward about politicians being spurred into legislative action by their belief that this or that injustice must be addressed.

But good law must be built on more than just passion. It has to be workable.

It’s not at all clear that the Scottish Government’s plans met this criterion.

Let’s pick through this mess, shall we?

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Does the charge that Jack, on behalf of the UK Government, acted to undermine the devolution settlement make sense?

Do we believe that, with support for independence bumping against 50 per cent and First Minister Nicola Sturgeon in a mess of her own making over her inability to deliver a promised second referendum, the UK Government saw political gain in attacking the devolution settlement? What was the win there?

The most committed blood-and-soil nationalist might content himself with the belief the Conservatives want nothing more than to neuter Holyrood but that’s not reality. Say what you like about Alister Jack but he is not so foolish as to think support for independence might be reversed by undermining the devolution settlement. No serious pro-UK politician would advocate this strategy.

But what other explanation can there be for the secretary of state taking this extraordinary step? After all, according to supporters of the reform bill, this is one of of the most consulted upon, most thoroughly examined pieces of legislation to make its way through the Scottish Parliament since its establishment in 1999.

This a widely-repeated claim that bears some examination.

It is certainly true that MSPs on Holyrood’s Equalities, Human Rights and Civil Rights Committee heard evidence from a great many witnesses. It is also true that many of these witnesses represented campaign groups and charities which are both supportive of changing the law and funded by the Scottish Government. Is an investigation of the issues which involves taking advice on government plans from groups funded by that government really all that thorough?

But, say supporters of the reforms, there was plenty of opportunity during the process for anyone to raise concerns. Why didn’t the UK government act then?

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Well, it’s not for the UK Government to step in during the committee process. No decision has been taken at this legislative stage and so there is no law to block.

However, a number of feminist campaigners along with representatives of the Equalities and Human Rights Commission (EHRC) did speak up while the committee members took evidence. The EHRC - the watchdog charged with promoting and enforcing equality legislation - warned that reform of the Gender Recognition Act in Scotland would create a clash with the Equality Act.

The line that no warning was given is a weak one.

Perhaps the oddest reaction from supporters of a change in the law has been the assertion that written into the new law is the statement that it does not affect the Equality Act. Simply stating something does not make it true. This is legislation on a level with your kid leaving a note reading “I didn’t eat all the Blue Ribands” in an empty biscuit tin.

It is now up to the SNP-Green government to decide whether to legally challenge the Secretary of State’s decision. This matter stands to get messier still.

Those who have campaigned for a change in the law on gender recognition have, in the shape of the UK Government, a clearly defined enemy. But I wonder whether their anger should be directed elsewhere.

The Scottish Government pressed ahead with this bill, ignoring clear warnings that it was flawed. When the EHRC intervened, First Minister Nicola Sturgeon should have paused for thought.

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And, if she decided she remained committed to changing the law, then she should have examined whether this was achievable in the way she proposed.

Scotland is not an independent country. This being so, it is entirely reasonable - under the devolution settlement - for the UK Government to have intervened to protect legislation impacting across these islands.

Those invested in reform of the Gender Recognition Act have been failed by the Scottish Government.



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