Does Nicola Sturgeon believe transwomen are women? Apparently not
The Equality Act, which she endorses, inconveniently asserts the primacy of sex over gender
It is with intense reluctance that I venture into the vexatious politics of gender reform. Not since Trofim Lysenko mangled genetics to conform to Joseph Stalin's idea of dialectical materialism has more pseudo-scientific nonsense been talked by supposedly intelligent people.
Most of us turn politely away when we hear the mantra "Transwomen Are Women". Not because of any prejudice against transgender people. No one cares whether the comedian Eddie Izzard wears a frock and high heels. Live and let live. Trans rights are indeed human rights. However, this issue has been weaponised with online McCarthyites hurling accusations of transphobia at anyone who questions the dogma. Enough already!
But venture into this realm I must because the First Minister of Scotland, Nicola Sturgeon, has decided to make transgender self-identification - a kind of auto-enrolment for people who want to change sex - the defining moral crusade of her late career. This has already provoked the biggest backbench rebellion since the SNP entered government in 2007 and the Scottish Government's first ministerial resignation. The community safety minister, Ash Regan, handed in her portfolio on the grounds that the new law would damage “the dignity and safety of women”.
Yet, the bill to reform the 2004 Gender RecognitionAct, which passed its first stage in the Scottish parliament this week, has been presented by Nicola Sturgeon as a purely administrative exercise - which in a sense it is. Trans people will no longer require a medical diagnosis of gender dysphoria to acquire a Gender Recognition Certificate, and will no longer have to live as their new gender for two years. They can also change their legal sex at age 16.
However, Nicola Sturgeon is being a tad disingenuous when she echoes the slogan: transwomen are women. She and her spokeswoman, the justice secretary, Shona Robison, have insisted repeatedly that this reform will not in any way “confer new rights on trans people” and will not “diminish women's protections under the 2010 Equality Act”. This means that she does not, indeed cannot, subscribe to the dogma that trans women are women in a literal sense.
The Equality and Human Rights Commission, which oversees equalities legislation, has made clear that trans people can be excluded from single sex spaces provided there is what the law calls a “proportionate means of achieving a legitimate aim”. The Equality Act gives the example of a counselling service for female victims of sexual assault. The First Minister adheres to the EHRC ruling and has repeatedly endorsed its protections.
However, if transwomen can be excluded from single sex groups it means that transwomen are not literally female under the law. Otherwise how could they be excluded from such spaces on the basis of their sex? The only way that a transwoman could be banned from a female only prison or a sporting event or a women's refuge is by reference to the biological sex they were born with. Otherwise their exclusion would be literally inconceivable.
By permitting discrimination on the basis of sex, the Equality Act is essentially transphobic in Stonewall's sense of that word. Ms Sturgeon has repeatedly cited the Equality Act with its single sex exemptions. So the First Minister has imported what trans activists call biological reductionism into her reform of gender law. To repeat: the Equality Act asserts the primacy of sex over gender. It is taken as read that the sex a transwoman is born with remains a defining characteristic under equality law.
Now most MSPs in the Scottish Parliament are entirely relaxed about this as is 99.9% of the electorate, but the trans activists loudly celebrating the bill are surely being sold a pup. Ms Sturgeon is a trained lawyer; she knows that she is not implementing the gospel according to Stonewall. When she says transwomen are women she is being disingenuous because she accepts that legally they aren't.
How does Ms Sturgeon reconcile her endorsement of discrimination on grounds of sex with the views of her coalition partners? The Scottish Green Party are gender fundamentalists who insist that trans women are women in an ontological sense, and that it is transphobic to exclude them from single sex spaces. Indeed, they regard it as transphobic even to discuss whether such discrimination is acceptable. The Scottish Greens have even broken with the English Green Party over the latter's alleged tolerance of such transphobic views. But it appears they also have problems closer to home: with the First Minister of their own Scottish coalition government.
And Nicola Sturgeon has a problem with the UK government. It has said it will not introduce gender self-ID south of the Border. This could mean Scottish transwomen heading south with gender certificates that are not recognised by the English NHS. Indeed, we could have totally different definitions of what a woman is north and south of the border which, who knows, might have been one of Ms Sturgeon's motivations. However, she erecting this gender border though legislative sleight of hand. This will become clear once the law is changed in Scotland. And transgender people find to their dismay that changing their legal sex does not change their biological sex.