Transgender law reform 'debate' is shrill and unenlightening - Euan McColm

To witness the reaction to its intervention in one of the most heated political debates of our times, you’d be forgiven for thinking the Equality and Human Rights Commission (EHRC) was a hate-group, established to undermine the principles it espouses.

Last Wednesday, the EHRC wrote to the Scottish Government raising concerns about the “polarised debate” around transgender law reform. The backlash was as swift and furious as it was incoherent.

The campaign group Stonewall accused the EHRC of launching “an attack on trans equality”, while Tim Hopkins of Equality Network sought to make this a constitutional matter. The EHRC board was appointed by the UK government and we didn’t need UK Government appointees telling us in Scotland how to vote in devolved areas. Hopkins's dismissal of EHRC members would have carried more weight were it not the case that the Equality Network is largely funded by the Scottish Government but UK crony bad, Scottish crony good, I guess.

With First Minister Nicola Sturgeon expected to introduce a Bill within weeks which would allow self-identification for trans people, the EHRC’s chairwoman, Kishwer Falkner wrote to social justice secretary Shona Robison highlighting a number of issues.

The campaign group Stonewall accused the EHRC of launching “an attack on trans equality”. Picture: Samir Jana/Hindustan Times via Getty Images

The commission was concerned about polarised debate which was causing much distress to people on all sides.

After stating the EHRC’s desire to work with Robison to “support a careful and respectful discussion of potential changes to the law”, Falkner highlighted concerns by some “lawyers, academics, data users and others” who have increasingly spoken up about the potential implications of changing the current criteria for obtaining a Gender Recognition Certificate (GRC). These concerns, she added, centred on the potential consequences for individuals and society of extending the ability to change legal sex.

Potential consequences included issues relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system.

As such, Falkner went on, the EHRC believed more detailed consideration was needed before any change to the law was made.

Predictably, social media was ablaze with talk of the EHRC being a transphobic hate group. Some equality campaigners announced they were severing all ties with the commission which was no longer fit for purpose.

While there was much fury, there was conspicuously little engagement with the issues raised.

Is it really hateful and unreasonable to ask whether the inclusion of male-bodied people in women’s sport might have implications for women? Is it simply morally intolerable for anyone to suggest that self-ID might create issues around access to legally-protected single-sex spaces?

Beyond announcing its intention to legislate, the Scottish Government has done an exceptionally poor job of discussing the details of this issue. First Minister Nicola Sturgeon has been dismissive of the concerns of some feminist campaigners while a number of her senior colleague see the issue as so toxic that they simply prefer not to engage.

We have reached a pitiful pass when members of the Scottish Government feel they can’t comfortably comment on such an important debate but, that, I’m afraid, is where we are.

But, then, looking at the treatment some have received for daring to question the wisdom of changing the law in this area, perhaps it’s not entirely surprising.

In recent years, trans rights activists have insisted we believe women such as the feminist campaigner, Julie Bindel, the writer and philanthropist JK Rowling, and the MP Joanna Cherry are all bigots driven by hatred. These women and countless others have been abused, threatened and - in some cases - physically attacked for expressing “gender critical” views. Who would choose that over the quieter life provided by keeping it zipped?

Those in favour of a change in the law point to polling that shows a majority of Scots support transgender self-expression. But that support is qualified. A survey carried out by Survation last December, for example, showed most Scots continue to believe a doctor's approval should be required before someone can change their sex in law.

When those opposed to self-ID raise concerns about male-bodied people in women’s prisons or other single-sex spaces, they are routinely denounced for scaremongering, for wishing to suggest all trans people present a danger. The “debate”, such as it is, is shrill and unenlightening.

The reaction from Tim Hopkins and others to the EHRC’s intervention suggests an unwillingness to get into some of the more complicated details of this issue. It’s far easier to attack the EHRC than it is to debate the questions it raises.

The Scottish Government remains determined to proceed with legislation but I wonder whether it can simply do so without acting on the EHRC’s recommendation that it gives further consideration to concerns raised.

Some campaigners may now dismiss the EHRC as worthless but that doesn’t shift the reality that the organisation is a statutory watchdog charged with ensuing the objectives of the Equality Act are met. The EHRC’s is a legitimate voice in this debate, whether its critics like it or not.

It seems inevitable that a change to the legislation on self-ID will lead to calls for a judicial review. If such a process were to begin, then failure to take heed of the EHRC might play badly for the Scottish Government. If those challenging a change in the law were to argue, for example, that the matter was not properly consulted upon, then the rejection of the EHRC’s call would provide a powerful piece of evidence.

Scottish Government cronies have been quick to attack the Equality and Human Rights Commission this week but no amount of lashing out will make the issues it raises simply go away.