Can Sunak force trans people to change sex at the border?

The Scottish Gender Reform Recognition Act is headed for the UK Supreme Court

A law to allow 16 year olds to change their legal sex without medical intervention was finally passed by the Scottish Parliament just before Christmas. It followed the longest and most acrimonious row Holyrood has ever seen. There were angry demonstrations by women’s groups (see above) and the first serious backbench rebellion in the Scottish National Party in the 15 years it has been in office.

Most Scots oppose Self ID as it is called according to recent polls. Women’s groups like For Woman Scotland and gender critical feminists like JK Rowling claim the Gender Recognition Reform Act will undermine single sex spaces and place women in danger from predatory men.

Under the new Act, Scots can now change their legal sex merely by making a declaration and living in their new gender for three months. But south of the border you can’t become legally female just by putting on a dress and a dab of lippy.  A transgender person there requires a medical diagnosis of gender dysphoria and must live in their new sex for 2 years before convincing a panel of experts to change their birth certificate.  

There are now reports that the Prime Minister, Rishi Sunak, intends to block Scottish Gender Recognition Certificates, in England because Self ID is not being introduced south of the border. This may seem a logical consequence of devolution, but allowing different regimes on gender identity to exist in one country creates as many problems as it solves.

What this new gender divide means is that, if reports are accurate, trans people will literally change their legal sex when they cross the border. A Gender Recognition Certificate GRC secured in Scotland will not be valid in England. But how would that be enforced?

Does the UK government intend to post gender police at the border? How would trans people with a Scottish certificate be barred from single sex spaces in England when it is discriminatory even to mention their birth sex? Will a new birth certificate, issued in Scotland, be valid when applying for a passport in England?

Many English Conservatives, like Theresa May, are urging Rishi Sunak to accept Scottish GRCs for an easy life.  She supported Self-ID when she was prime minister and evidently thinks the government should adopt the Scottish system by default.  The civil service will no doubt be advising Mr Sunak to accept Scottish Gender Recognition Certificates on the grounds that the UK already accepts GRC’s from countries like Iceland which have something similar to Self-ID.   Why confront the unholy alliance of Scottish Nationalists and Stonewall?

However, Scotland is not another country but part of the UK, which for the most part is not adopting Self ID. And there is already considerable resistance from the gender alliance that everyone ignores: women.  They make up half the population and have yet to be properly consulted. It is not at all clear that women voters in England are prepared to accept that bearded men with male genitalia are women just because they say they are.   Or that it’s ok for 16 year girls to go on extended holidays in Scotland and come back as men. 

There has been a string of high profile English court cases where gender critical feminists like the anti-poverty activist, Maya Forstater, and the barrister, Allison Bailey, have fought for and won the right to declare that trans-women are not women. Feminist groups like Sex Matters and the LGB Alliance refuse relinquish their sexual identity to accommodate the feelings of men.

Many women are making clear that they already resent the presence of male-bodied transwomen in changing rooms and other single-sex spaces.  In Scotland even convicted sex offenders can now change their sex and demand to be housed on women’s jails - a practice that not only places women prisoners at risk but also skews crime statistics.  It has recently emerged that some transgender prisoners change back to their original sex when they are released.

The Women and Equalities Minister, Kemi Badenoch, has made clear that she believes Self-ID poses a threat to the safety or women and girls.  Most English voters bear no ill will to transgender people but do not believe that human beings can change sex and oppose Self ID.  This is not a silent majority but an increasingly vocal one.  Nor will English voters willingly accept Nicola Sturgeon dictating who is and is not allowed to be a woman in England. 

The Scottish First Minister has disingenuously claimed that gender reform is merely an administrative exercise and poses no threat to single sex spaces. Yet she must know that this is not the case.   Women, or “people with cervixes” as the Scottish NHS likes to call them, are no longer defined by their biological sex in Scotland. This was made clear by Lady Haldane’s landmark ruling last month in Scotland’s highest court, the Court of Session.

 Transwomen are now women, in Scotland at least, “for all purposes”. The legal category of “woman” has been changed to include those who were born male. They cannot be excluded from women’s spaces on bodies such as public boards and nor can women insist on being treated by NHS staff who are of their biological sex. 

Well, that may be fine for Scotland, though it is by no means clear that Scottish women will give up their fight to protect their sexual identity. But the UK government is not obliged to accept an Act of the Scottish Parliament that could have profound implications for women in England. The Prime Minister has powers under Section 35 of the 1998 Scotland Act to withhold royal assent to legislation passed in Scotland that alters the law across the UK. If, as seems likely, it will be impractical to have two different definitions of a woman operating in different parts of the UK then Rishi Sunak should bite the bullet and block the GRRA.

That would inevitably lead to a legal fight with the Scottish Government. This is something Nicola Sturgeon may have planned all along, just as with her bill to hold an “advisory” independence referendum which was blocked by the Supreme Court last year. The SNP would like to paint the UK Tory government as bigoted, transphobic and undemocratic by blocking this Holyrood Act. But the UK government should not be afraid of letting this matter go to judicial review.

The 2010 Equality Act, the root of the problem, needs to be re-examined. Its contradictory protections to both “sex” and “transgender reassignment”, are unintelligible at the best of times. The UK government insists that sex takes precedence over gender and the home secretary, Suella Braverman, has issued guidance on the EA stating that transwomen can be excluded from all single sex spaces. Yet LGBT lawyers say that this is not the case and that it is only legal to exclude in exceptional circumstances. Indeed, that it is illegal even to raise the birth sex of a trans person unless as a “proportionate means of achieving a justifiable end” as the law puts it. No one knows what that means.

The Gender Recognition Reform (Scotland) Act has made this issue a central one in equality law precisely because it will be necessary to exclude trans people with Scottish Gender Recognition Certificates from single sex groups in England. Indeed, it will be necessary to change the legal sex of transgender Scots (or English “trans tourists”who go to Scotland to circumvent the law) when they relocate to England. I don’t see how this can work in practice. It is not possible for such different legal definitions of sex to coexists in one country.

There is only one place that this issue can be resolved and that is in the Supreme Court. The UK government should withhold royal assent to the GRRA and allow it to go for judicial review. This may incur the wrath of the Scottish National Party and of LGBT groups in England who hope that the Scottish law will force Rishi Sunak to adopt Self-ID by the back door. But the UK government has no real option. Women in both countries, have a right to expect that their views will be taken seriously and that their sexual identity, and protection from harm, will not be sacrificed on the alter of political expediency.