Gender Recognition Reform: A Factor in the Unexpected Departure of Scotland’s First Minister
On 15 February 2022, Nicola Sturgeon addressed a press conference, called at short notice at her official residence of Bute House, on Charlotte Square in Edinburgh’s New Town, and unexpectedly stood down as Scotland’s First Minister, after eight years in post. She admitted that she had become a polarising figure, no longer able to generate support for her ambitions for Scottish independence. Although she underplayed the role of “short-term pressures” in her decision to resign, it is widely believed that the Scottish Government’s insistence on reforming the Gender Recognition Act 2004 could have led her along a self-destruct pathway, as reflected in unfavourable public opinion polls concerning proposed changes to the law and a drop in her personal approval ratings.
The legal framework for gender change in Scotland, as well as in England and Wales, is currently provided by the Gender Recognition Act (GRA) 2004. The relevant Bill was passed by the House of Commons on 25 May 2004, received Royal Assent on 1 July 2004, and came into force on 4 April 2005. The GRA enables trans people, aged 18 or older, to legally change their gender, provided they have lived in their acquired gender for at least two years and that a diagnosis of gender dysphoria is supported by a Gender Recognition Panel of legal and medical professionals, without requiring hormone therapy or gender reassignment surgery. Successful applicants can legally change their gender through Gender Recognition Certificate (GRC), following which their new gender is recognised in an amended birth certificate.
The recent Scottish initiative to reform gender recognition law aimed to simplify and speed- up the existing legal process for gender transition. This would supposedly reduce any stress for applicants, and legalise change of gender by self-declaration-in keeping with established practice in several nations around the world. The Gender Recognition Reform (Scotland) Bill was introduced in the Scottish Parliament on 3 March 2022 by Shona Robison, MSP, Cabinet Secretary for Social Justice, Housing and Local Government, and passed by 86 votes to 39 on 22 December 2022.
The Gender Reform Bill proposed a system of statutory self-declaration of gender. Those intending to change their gender had to be 16 years of age or older, either born, adopted, or ordinarily resident, in Scotland, and to have lived in their acquired gender of choice for at least the previous three months (six months in the case of those aged 16 or 17). They had to confirm their intention to continue permanently in their acquired gender. Proof of having lived in this acquired gender might be provided by amended personal administrative documents (passports, NHS records), the consistent use of gendered pronouns and titles, self-description, or an actual change of name. Under the proposed new legislation, applicants would apply directly to the Registrar General for Scotland for a GRC, bypassing any Gender Recognition Panel. The GRC would be issued after a three-month “reflection period.” This process would be legally binding, making it an offense to subsequently abandon one’s chosen gender for the first time.
The proposed Scottish legislation has polarised the general public and pitted trans people and their supporters against a much larger group of people, including celebrities such as J.K. Rowling among their ranks, who fear potential abuse from “predatory” trans women, with residual male characteristics, in women-only spaces (changing rooms, toilets, single-sex wards, and refuges), and women being disadvantaged by trans women in all-women short lists for jobs and in sporting competition. Alister Jack, Secretary of State for Scotland vetoed the Bill on 27 January 2023, invoking Section 35 of the Scotland Act 1998. The Equality Act 2010 and cross-border differences in gender recognition policy were cited in support of this decision, even though the Scottish drafters of the Bill promised continued protection for single-sex exceptions for services and facilities and single-sex employment rights.
Coincidentally, a specific case further incited public opinion against the Bill. On 24 January 2023, Isla Bryson, a trans woman, but with male genitalia, was convicted of raping two women in Glasgow, in 2016 and 2019, while a married man and then known as Adam Graham. Bryson was duly sent to HMP Cornton Vale, a women’s prison in Stirling, as a remand prisoner while awaiting sentencing. The ensuing furore led to a personal intervention by Nicola Sturgeon and Bryson was swiftly moved, within three days, to the male wing at HMP Edinburgh.
The fallout from the aborted Gender Recognition Reform Bill has damaged Sturgeon, derailing her project for Scottish independence, and may have prompted her premature departure from office at a time when Scotland’s education system, NHS, public transportation, policing, and growing drugs problems all demand urgent attention from its leaders. Proposals to fast-track the process of self-declaration of gender, on the grounds that this is a pressing matter of personal identity that demands urgent action, appear to have backfired and hastened the First Minister’s political demise, while not necessarily benefiting the wider cause of trans rights.
Ashis Banerjee