Gender Recognition Act reform: Scottish government must heed Equality and Human Rights Commission's concerns – Murdo Fraser MSP

If ever there were any doubts about the toxicity of the debate around transgender rights, these were dispelled for viewers of an exchange at Holyrood last week.

The Equality and Human Rights Commission has asked Social Justice Secretary Shona Robison to allow more detailed consideration to be given before any changes are made to the Gender Recognition Act (Picture: Fraser Bremner/WPA pool/Getty Images)

The SNP MSP John Mason asked an entirely appropriate question about the number of transgender women (in other words, those who are biologically male) being held in women’s prisons in Scotland, and followed up with the question as to why female offenders, many of whom had suffered violence and sexual assault previously, should not be entitled to a single-sex prison.

This was immediately leapt on by the Green MSP Maggie Chapman, who claimed there was “a very shrill anti-trans dog-whistle in John Mason’s question, which is deeply troubling, especially given the rise in the number of transphobic hate crimes that are being reported”.

To her credit, the Deputy Presiding Officer, Annabelle Ewing, slapped down the Green MSP, but it was clear her question was an attempt to paint Mason’s question as inappropriate and unacceptable, and likely to encourage violence against trans people. On an issue that requires the most delicacy of judgement and expression, often it is the advocates of trans rights whose fists clunk more loudly than those who oppose change.

There are important, serious issues at stake here, and we will only ever be able to reach a consensus around these matters (if, indeed, one is ever possible), with open discussion and debate. If we cannot have that within Scotland’s Parliament due to voices on the extremist fringe shrieking “transphobia” every time an opinion is expressed with which they disagree, we will never make progress on this issue.

Last week also saw a significant intervention from the Equality and Human Rights Commission.

In a letter to the SNP Cabinet Secretary Shona Robison, the chairwoman of the EHRC, Baroness Kishwer Falkner, set out the body’s concerns about a move to self-identification of gender, and the impact this would have on women’s rights. She called for more detailed consideration to be given before any change was made to the Gender Recognition Act.

The letter emphasised that the EHRC considered “the established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people and the ability for them to obtain legal recognition of their gender, collectively provide the correct balanced legal framework that protects everyone”.

It was an important contribution from the statutory body that exists, across the whole of Great Britain, to promote and uphold equality and human rights ideals and laws. It was a shot across the bows of the SNP government, who so far have been been clear in their intention to change the law to allow the self-identification of gender without the need for any third-party medical certification, despite the many concerns raised about the impact on women-only spaces and services.

The EHRC’s letter provoked a furious reaction from the Scottish Trans Alliance and the Equality Network, two groups campaigning for a change in the law.

In a joint statement, they attacked the human rights watchdog as “UK government appointees telling us in Scotland how to legislate in devolved areas”, ignoring the fact that EHRC operates across England, Wales, and Scotland.

There is something of an irony in two charities heavily dependent on the Scottish government for their funding questioning the independence of a statutory body, just because they disagree with the position that they have taken.

In contrast, no fewer than 15 groups representing women in Scotland wrote to the First Minister asking her to listen to the EHRC’s concerns, and expressing concern at the lack of consultation with them.

The matter was raised at Holyrood last week by my Conservative colleague Megan Gallacher MSP, but rather than engaging with the substance of the issue, Nicola Sturgeon seemed to question the stance taken by the Commission, claiming that it had changed its position since 2019.

It is clear is that opposition to the proposed reform of the Gender Recognition Act is growing by the day. Opinion polls show that a substantial majority of the Scottish population do not support a move to self-identification of gender, given the implications this has on the protected characteristic of sex under the Equality Act.

Despite protests from the Scottish government, many hold the view that women’s rights are under threat from what is being proposed.

The debate is confused by the conflation of two quite distinct concepts: genetic sex, which is largely binary and immutable, and gender identity, which is diverse and fluid. Until this basic distinction is understood, it is impossible to properly discuss the legal framework, and the impact of changes on protected rights under the Equality Act.

Reform of the GRA is a relatively narrow issue in the context of a much broader debate around gender identity. There are, for example, substantial concerns about the rise in young people, particularly girls, now presenting with gender dysphoria, and being encouraged down the route of transition. We also see the chilling personal stories of detransitioners such as Sinead Watson, whose testimony I heard two years ago.

As a young woman, she had testosterone injections for four years and underwent a double mastectomy, all of which she now deeply regrets. She was, in her own words, “obsessively and sycophantically affirmed” in her gender choice, when she should have been challenged by medical professionals, and offered counselling and support. This is a young person whose life has been ruined because those required to have her best interests at heart utterly failed to protect her.

If the most recent intervention by the EHRC causes the Scottish government to pause before progressing with this legislation, then it will have done all of us a favour.

It will, perhaps, give time for proper, careful evidence-led consideration of these issues, and allow us to debate them in a sensible and grown-up manner. It is the least that Scottish women should expect.

Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife

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