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Friday, June 14, 2024

The two sides of Scotland's gender law debate

Ellie Gomersall

The diamond grass of Cathkin Park is glinting in the winter sun as Ellie Gomersall reflects on something intensely personal – her identity.

It is a bitterly beautiful December day on the south side of Glasgow and Ms Gomersall, 23, is telling us about “coming out” as a woman.

It was, she says, “a really happy, joyous moment” thanks to the support of friends and family.

But the bureaucracy she then encountered was less enjoyable.

Ms Gomersall describes a lengthy – and continuing – wait to be seen at a gender identity clinic, and a struggle to accumulate the paperwork required to demonstrate to the world that she is not a man.

“I often joke that the hardest thing about being trans is the admin,” she says with a wry smile.

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Ms Gomersall is currently president of the National Union of Students Scotland, although she is speaking to BBC News in a personal capacity.

Nearly five years after “coming out,” she has been able to amend her passport and driving licence which now reflect her preferred identity, listing her sex as female. Her birth certificate, however, still records that she was born male.

If she were to marry or die any time soon the marriage or death certificates also would state that she was a man.

That means, she says, that at present “I can’t guarantee that I’ll have dignity in death”.

supporters of the bill

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For the past 17 years, the process for changing sex on a birth certificate has been set out in the Gender Recognition Act 2004, enacted by the Westminster parliament in April 2005.

Applicants must first obtain a gender recognition certificate, the criteria for which are detailed in the legislation.

The current requirements in UK law for a gender recognition certificate are:

  • The applicant must be aged 18 or over
  • A medical report confirming a diagnosis of gender dysphoria, which is described by the NHS as “a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity”
  • A second medical report detailing any treatment, such as hormone therapy, and/or any surgery related to the diagnosis
  • Evidence of living in acquired gender for two years
  • An oath of intention to live in acquired gender until death
  • Approval from a UK government-appointed panel of two members, one legal and one medical

The Scottish government – led by the Scottish National Party but also including ministers from the Scottish Green Party, of which Ms Gomersall is a member – wants to remove some of those hurdles, making the process quicker and easier.

If the Gender Recognition Reform (Scotland) Bill becomes law, it would include these changes:

  • The age limit for applications will be cut from 18 to 16
  • The requirements for medical reports, including a gender dysphoria diagnosis, will be dropped
  • The period applicants are required to live in their acquired gender will be reduced from two years to three months (and, after an amendment to the legislation was accepted by ministers, to six months for 16 and 17-year-olds)
  • The addition of a three month “reflection period” before a gender recognition certificate is issued
  • Applications will be handled by the Registrar General for Scotland instead of the UK panel

Ms Gomersall is a strong supporter of the legislation, which she says would make her life easier and more dignified.

She argues that gender identity should not be a matter for the state.

“I think ultimately the only person who can really describe my own identity, my own gender is me,” she insists.

She explains that she has been unable to change her birth certificate because she has been unable to acquire a gender recognition certificate – because she has been unable to obtain an initial appointment, let alone a diagnosis of gender dysphoria or the required medical reports, at Glasgow’s Sandyford gender identity clinic, one of four such facilities run by NHS Scotland.

JK Rowling

JK Rowling

The Scottish government has attempted to present the bill as an administrative tidying-up exercise designed to simplify and streamline the process in a manner which is “more respectful of the privacy and dignity of trans men and women”.

Opponents of the bill – led by the author JK Rowling – feel it goes much further than that.

The Harry Potter creator set out her concerns in detail two years ago in a 3,700-word post on her website.

The Scottish government’s plans, she wrote, “will in effect mean that all a man needs to ‘become a woman’ is to say he’s one”.

In the article, Ms Rowling expressed sympathy with vulnerable trans people who “need and deserve protection”, and said she wants trans women to be safe.

“At the same time, I do not want to make natal girls and women less safe.

“When you throw open the doors of bathrooms and changing rooms to any man who believes or feels he’s a woman – and, as I’ve said, gender confirmation certificates may now be granted without any need for surgery or hormones – then you open the door to any and all men who wish to come inside. That is the simple truth.”

Supporters and opponents of the bill outside the Scottish parliament

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Ms Gomersall disagrees, insisting “all this process does is it changes your birth certificate – and no one checks someone’s birth certificate before they access a single sex space. This legislation has no impact on single sex spaces.”

Ms Rowling and her fellow critics of the bill are far from satisfied by such assurances.

When, in October, the writer posted on Twitter a photograph of herself wearing a T-shirt which described First Minister Nicola Sturgeon as a “destroyer of women’s rights” it was a reminder that two of Scotland’s most successful women are now pitted against each other in one of the great moral debates of our time.

“I feel we’re currently waging a cultural war between what I would see as authoritarians and liberals,” Ms Rowling told her fellow feminist, the journalist Suzanne Moore, earlier this month.

Ms Sturgeon responded to the T-shirt criticism by urging respect and insisting that the bill neither gave any additional rights to trans people nor took any rights away from women.

“It is men who attack women and we need to focus on that, not on further stigmatising and discriminating against a tiny group in our society that is already one of the most stigmatised,” she told BBC Radio Scotland.

“I say this as a passionate life-long feminist, and I have spent much of my life campaigning for women’s rights.”

The proposal has also been controversial within the SNP leader’s own party leading to the resignation of community safety minister Ash Regan as part of the biggest rebellion since the party came to power at Holyrood.

First Minister Nicola Sturgeon in parliament

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Ms Rowling’s tweet criticising the SNP leader was in support of a organisation called For Women Scotland who describe themselves as “working to protect and strengthen women and children’s rights”.

Over coffee in an Edinburgh cafe, the group’s co-director Susan Smith told me she was particularly concerned about the potential effect of this “massive social change” on young people.

“In other countries, they are halting the use of puberty blockers and cross-sex hormones for people under 18 because we are starting to see some really severe physical side effects,” she said.

Ms Smith said Scotland was going in the opposite direction, and warned about the impact of these treatments.

She said young people’s perception of their gender was probably in flux until they were in their twenties.

And she described the “total acceptance of the premise that sex is not real and that it’s a feeling” as an “extremist position”.

“I think that some of the ideas in this, especially about people having been born in the wrong body or having female brains… are profoundly sexist, because they suggest there’s a way to be a woman and a way to be a man.”

Susan Smith

Even the United Nations has now become embroiled in the debate, with two UN experts giving contradictory evidence to MSPs about the law’s potential impact.

Reem Alsalem, the UN’s special rapporteur on violence against women, told members of Holyrood’s equalities committee that introducing gender self-identification could see violent men taking advantage of loopholes “to get into women’s spaces and have access to women”.

But Victor Madrigal-Borloz, the UN independent expert on sexual orientation and gender identity, insisted there was “no evidence” that “maintaining complexity in the process of recognition of gender identity would be an effective safeguard”.

Even if the bill becomes law that may not be the end of the matter, as the UK government has been making noises about challenging the legislation.

One potential avenue for doing so is the interaction between gender recognition certificates issued in Scotland and equalities law, which is reserved to Westminster.

Last week Scotland’s Court of Session ruled in favour of the Scottish government over its intention to include trans people in the definition of women in terms of female representation on public sector boards.

Lady Haldane concluded that for the purposes of the 2010 Equalities Act the meaning of sex was “not limited to biological or birth sex.”

Oppenents of the bill

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For Women Scotland, which brought the case, says the ruling reveals that a gender recognition certificate effectively counts as a change of sex under the Equality Act. It says this could open up women-only spaces such as changing rooms and refuges to trans people, potentially putting women at risk.

Supporters of the bill insist that is a misreading of the ruling.

Another potential challenge the UK government could mount would be to argue that recognising Scottish gender recognition certificates elsewhere in the UK could breach the Scotland Act 1998, which established devolution, if Holyrood were seen to be legislating beyond its borders.

On Monday, Scotland’s social justice secretary Shona Robison and the UK’s women and equalities minister Kemi Badenoch held a virtual meeting to discuss the British government’s concerns.

While acknowledging that there were very different views on the subject in London and Edinburgh, the UK government nonetheless described the discussion as “constructive” and the Scottish government said both sides had agreed to continue to work together.

Aileen McHarg, professor of public law and human rights at Durham University’s Law School, said there was a third route which opponents of the bill might go down: a challenge under Article Eight of the European Convention on Human Rights (ECHR), which codifies a right to respect for privacy.

But, said Prof McHarg, supporters of the bill could also mount a human rights challenge if there was a blanket refusal to recognise Scottish-issued gender recognition certificates elsewhere in the UK.

She told the BBC: “This is going to be very messy whatever happens.”

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