The Observer view of Scotland’s controversial proposed gender reforms | Observer editorial

What is a woman? The answer to this question has become a highly contentious political issue. It lies at the heart of a rights conflict that has turned toxic, between those who believe someone’s self-declared gender identity should override biological sex for the purposes of single-sex services and sports and those who believe biological sex remains a relevant concept in the law. and society. This conflict will come to a head this week in Scotland, where MSPs will vote on the SNP’s reforms to require people to be legally treated as the opposite sex on the basis of self-identification.

The UK was one of the first countries to introduce important legal protections against discrimination for transgender people in 1999; these are currently enshrined in the Equality Act of 2010 under the protected characteristic “gender change”. It also protects women from gender discrimination and states that it is legal to offer women-only services and sports – excluding all men, regardless of gender identity – if they are a proportionate means of achieving a legitimate aim. It is a sophisticated legal balancing act. However, a small group of trans people – around 5,000 – have changed their gender for most legal purposes under provisions of the 2004 Gender Recognition Act. Obtaining a Gender Recognition Certificate (GRC) requires a medical diagnosis of gender dysphoria and proof that someone has lived as the opposite sex for at least two years. But it has been unclear whether a GRC changes someone’s gender under the Equality Act.

The Scottish courts ruled last week that it does. This ruling can still be appealed, but if upheld, it has huge implications for what Nicola Sturgeon’s gender identity reforms mean for the rights of Scottish women and girls. This is why both the Equality and Human Rights Commission and the UN Special Rapporteur on Violence Against Women and Girls have called on the Scottish Government to take a break on this legislation.

These reforms will grant a GRC to any man who declares that they intend to live as the opposite sex, despite Scottish Ministers being unable to define what living as the opposite sex means in practice. The Scottish Government has predicted that this will result in a tenfold increase in the number of people who will be granted GRC. It has implausibly claimed that this is an administrative change without consequences for women’s rights, while at the same time arguing in court that a GRC changes someone’s gender for the purposes of the Equality Act.

These reforms will make it more difficult for women to access women-only services and spaces, such as prisons, hospital wards and intimate care. They make it more complicated for providers to justify the provision of single-sex services and are likely to increase the number of public providers who say privacy regulations for GRCs prevent them from granting same-sex intimate care requests such as toileting and dressing. .

It’s wrong: just as transgender people have the right to access specialist services and gender-neutral spaces adapted to their needs, women have the right, on grounds of privacy and dignity, to access women-only spaces where they are vulnerable, undress or receive intimacy. care. Female spaces are also an important form of security in a world where male violence constitutes the overwhelming majority of societal violence, including sexual violence. Sturgeon’s reforms will allow any man who signs a declaration to have enhanced legal rights to access areas where women undress and are vulnerable. There are cases of male sex offenders who identify as women after conviction. A Scottish male sex offender who identifies as a woman sexually assaulted a 10-year-old girl but has now been placed in a women’s prison after violently attacking an inmate in a men’s prison. The SNP will no doubt emphasize implausible claims by the UN expert on gender identity that the reforms pose no risk to women, but they directly contradict the evidence of his colleague who is an expert on violence against women and girls. Self-ID is also likely to make it more difficult for some women to prove pay discrimination in court.

The other major problem with the reforms is that they introduce provisions that allow children aged 16 and 17 to change their legal gender through their own ID. This moves Scotland in the opposite direction to England, where an independent review by Dr Hilary Cass, one of the country’s most senior paediatricians, has found that gender dysphoria often resolves itself after puberty, gender identities can remain in flux until a young person is early. 20s and treating a young person as if they were the opposite sex is an intervention with a potentially significant impact on psychological functioning, with insufficient evidence on outcomes.

Instead of grappling with these serious concerns, the SNP-Green governing partnership has variously dismissed them as transphobic, invalid and artificial. The reforms have led to the biggest SNP backbench rebellion ever, but they look almost certain to pass with the support of Scottish Labour.

The respectful compromise would be to introduce some form of legal self-identification for transgender gender identity while specifying that this does not change anyone’s gender under the Equality Act. A clear distinction between gender identity and biological sex in the law will balance the legitimate rights of trans people and the rights of women, protecting both groups from discrimination, but establishing beyond doubt that it is legal to offer women-only services for women as a matter of privacy. , dignity and security. But in Scotland and Westminster, self-styled progressive politicians have proven too squeamish to advocate balance and compromise. It is marginalized women – in prison, in domestic violence services and in need of intimate care as a result of disability – who will bear the consequences of their cowardice.

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