WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 01 2023
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Gender, recognition and devolution

Gender, recognition and devolution

Justice in a time of austerity: a Justice Gap series

If there is one consistent issue that has bedevilled America’s politics since the Founding, it is the question of what belongs to the states, and what belongs to the federal government.  When the Founders were carving up the responsibilities of government, they were careful to not extend total sovereignty to the federal government. Instead, they split powers and duties between the states and the federal government.    Questions of national security and defence were handed to Congress and the White House, while more discrete, local issues, like education, were left for state government.

No matter how clearly the Founders tried to demarcate these areas of responsibility, conflict was inevitable.  Having been given their domain, states guard it jealously, with state governors wary of the President or Congress treading on their toes, and often snapping, chihuahua-like, to the national media about the overreaching, dictatorial federal government. This is what Nicola Sturgeon, the Scottish First Minister, looks like in her response to the UK government’s decision to block Scotland’s new gender recognition bill, panting about a ‘full-frontal attack on our democratically elected Scottish government’.

Sturgeon shares the same neurosis as every other public figure who sounds off about ‘attacks on democracy’. She prefers superficial and flawed soundbites over engaging with reality.  The Scottish government may be democratically elected, but it is not sovereign.  It is the rough equivalent of an American state. It possesses the authority to act on local matters, but not to act on matters concerning the national interest.  Viewed through this lens, the UK government’s exercise of a s.35 veto is not an assault on it, and nor is it a populist attack on transgender people.  What it is is a decision entirely in-keeping with devolved power.

The Labour devolution project of the 1990s brought about an American-lite version of federal  government to the UK.  Rather than all questions being asked and answered in Westminster, Labour hoped to localise some questions of government, with decisions being made closer to the people they affected (and to neutralise the question of Scottish independence).  At the same time, it was careful not to give Holyrood too much power, reserving some matters to Westminster.  In order to enforce this, under s.35 Scotland Act 1998, the prime minister or a secretary of state has the authority to make an order ‘prohibiting the Presiding Officer from submitting the bill for Royal Assent’ if they have ‘reasonable grounds to believe would have an adverse effect on a question of law as it applies to reserved matters’. In part, this section was include to justify handing more power to the Scottish Parliament’s authority, mitigating the concerns of those in Westminster who worried about the Scottish legislature acting beyond – or ‘outwith’, in Scots – their authority.  

Up until now, s.35 has never been exercised.  Holyrood has remained within the four corners of its authority. But the fact it has now been exercised is not an example of authoritarianism, but of democratic safeguards working exactly as they should.  Scottish ministers, well aware of s.35, have previously preferred to engage in dialogue with their counterparts in Westminster, preferring quiet, effective government over melodramatics in the press.  Sturgeon, however, has obvious motivation for pushing the issue onto the front pages, with the manufactured outrage used to stoke more division between Scotland and Westminster, and so fanning the flames of independence.  

A superficial reading of devolved and reserved matters  would suggest that matters of gender recognition are for Scotland. According to Scottish ministers, the Gender Recognition Act hands Holyrood the authority to decide questions relating to the legal status of transgender people.  But as Dr Michael Foran has argued for Policy Exchange, this misrepresents the legislation, which did not permit Holyrood to set the ‘substantive criteria for receiving a gender recognition certificate’.   

For the bill’s supporters, the only consequence of the bill is greater respect for trans people, and for their ability to be recognised by society as the gender they acknowledge.  If this was the case, there would be no issue and no outrage to manufacture.  There would also be little point to the legislation.  Legislation cannot be both of overwhelming importance to one group, and of no impact or of no relevance to the rest of society.  Where the bill is likely to have the most effect is on equalities law, particularly after the Supreme Court’s decision in Women Scotland, which found that a GRC changes a person’s gender under the Equality Act.   

Lord Hope, the former law lord, discussed this in an interview on Wednesday morning, where he identified one meaningful hypothetical.  The bill would allow someone aged sixteen – the current law sets the age at eighteen – to identify as the opposite gender to that on their birth certificate.  From here, a student in Scotland would be able to apply to single-sex schools on the basis of their new gender recognition certificate.  Without engaging with the question of what single-sex schools’ stance should be on issues like this, there is an obvious concern with, for instance, someone who identifies as female, but with male genitalia, attending an all-girls boarding school.  It may be that it can be easily managed, but this would be better done through engagement with the UK as a whole, rather than because of the Scottish government’s desire to provoke a constitutional conflict. 

If the government allowed the bill to go ahead, it would leave us in the ‘problematic’ situation that someone would possibly have a ‘different gender, and legal sex… depending upon where they happen to be in the UK’. It might be easy for defenders of trans-rights to claim that gender is an individual matter, but this disregards the fact that gender is integral to someone’s participation in society – where it becomes a group matter. The question of single-sex schools alone makes this self-evident.   Being female (or being a woman) – and benefiting from the protections that such status is accorded by society – must be decided by clear and accepted standards across society as a whole.  

Not only has no clear, compelling definition of gender by the proponents of this bill been put forward and accepted, but women – one half of the biological gender binary – have yet to achieve equality in society.  From the attitude of the campaigners for the gender recognition law and for trans-rights, you would have thought that the obvious issues of gender inequality in society were done and dusted.  Women’s concerns over access to female-only crisis shelters are dismissed by some as the worries of bigots, as are worries about being treated in hospital, or access to effective healthcare.

Trampling over concerns like this dismisses the fact that women still have very real concerns about their role and status in society.  This week saw another serving Metropolitan Police Officer charged with multiple counts of rape and more revelations of institutionalised misogyny within the force, all barely a year after the Metropolitan Police advised women wary of being questioned alone by a male police officer to ‘flag down a bus’.    Misogyny does not always manifest as violence, however.  Women may have made vast leaps forward in every part of society, but there is still a chasm that must be overcome.  The Fields Medal – the Nobel of the mathematics world – has only been won by two women in its history.  Amia Srinivasan, the philosopher and writer on feminism and equality, is the first ever woman to hold All Souls College’s Chichele professorship.  Of the nine seats on the UK Supreme Court, more are filled by Davids than by women.   

None of this is to say that trans-rights should have to wait their turn, and that the question of gender equality must be answered before the next question is taken up. But it is to say that when women and women’s interest groups raise concerns with gender recognition, their concerns should not be treated as bigotry, or as the out-of-date musings of third or fourth-wave feminists, but as valid and real.  As  Foran has written, the possession of a GRC may not require someone to be admitted to a same-sex facility, such as a women’s shelter, but it ‘may have an adverse impact on the ability of single-sex places to exclude’.  

Devolution is a complicated issue. It involves drawing lines in an evolving relationship, where tension comes and goes.  Couple the question of devolution with the question of sex and gender rights – an area where we still do not have a clear, accepted definition of what it means to be male or female, or a man or a woman, and you have a recipe for chaos.  Pointing out concerns with the Scottish GRC bill, or supporting the government’s use of s.35 is not bigotry or transphobia, and nor is it the sign of an anti-democratic or authoritarian government.  It is simply a government and its people recognising the complexity of the issue and engaging with it, rather than sticking their heads in the sand.