Activists often claim a kind of sacred wisdom about transgender issues. But in the UK, at least, that's now up for debate.
The Fall of Nicola Sturgeon
On Wednesday morning last week, Scotland’s First Minister Nicola Sturgeon—sometimes referred to as Scotland’s “First Transactivist”—resigned. She will stay in post only until the Scottish National Party selects a new leader.
She departs leaving both TERF Island and her successor holding two sweating sticks of constitutional dynamite. First, the fate of her much-vaunted gender recognition bill. Secondly, the way forward in any campaign for Scottish independence, given the Supreme Court ruled last year that Holyrood cannot hold a referendum on it without Westminster’s consent.
At her resignation presser, she proffered varied reasons for her departure and batted away journalistic questions about the trans issue. It is nonetheless widely recognised across the political spectrum and on both sides of the border that transgenderism brought her down, even if—as some commentators observed—the trans row was merely the culmination of a long-term trend.
How Did We Get Here?
Last year, I wrote a Forum lead for Law & Liberty on the UK’s precarious constitutional state. In it, I suggested devolved parliaments in two out of four Home Nations—Northern Ireland and Scotland—carried within them the potential to break the Union apart.
Meanwhile, in 2021, I wrote two lengthy features on various permutations of the transgender debate: dispatches, as it were, from TERF Island.
I expect to be asked my views on constitutional law. I made my name as a commentator writing on Brexit. Later, I was drawn into the transgender issue thanks to practitioner experience. By way of background, I’m one of a small number of lawyers qualified in both English and Scots law. In 2012, I worked at the Office of the Solicitor to the Scottish Parliament (when Alex Salmond was First Minister). My speciality was the Gender Recognition Act (UK) 2004, which I wrote about for my professional association’s journal.
At no point, however, did I expect to combine constitutionalism and transgenderism. Yoking the two together struck me—on the rare occasion it rose to top of mind—as a legal Frankenstein, some sort of legislative malfunction. Yes, prognostication is a mug’s game. The Bank of England and IMF should run their economic forecasts on the same page of the paper as Mystic Meg. I’m not ashamed of my inability to see the future.
Nicola Sturgeon Picks a Fight
Late last year, the SNP-dominated Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill to speed up changing one’s legal gender. Under the UK-wide Gender Recognition Act, people who want to do this must apply to a gender recognition panel for a gender recognition certificate (“GRC”). This requires a specialist’s diagnosis that they are suffering from gender dysphoria. They must also provide evidence they have lived in their acquired gender for at least two years.
Organisations like Stonewall (the UK charity, not the US riot) argue this process is unnecessarily cumbersome and difficult, and that it causes emotional distress. They advocate for self-identification: if I say I’m of the opposite sex, then the law should recognise that almost without question.
Until recently, Sturgeon agreed with this proposal, and says she still does (despite contradictory behaviour, of which more anon). She has repeated the mantra trans women are women hundreds of times, both on the record and off it. Her reforms do away with both panel and diagnosis while cutting the period of “living in the acquired gender” to three months. They also lower the minimum age by which someone can apply for a certificate of gender identity from 18 to 16.
Fairly obviously, the Scottish legislation conflicts with the situation in the rest of the UK.
In response, Westminster decided to use section 35 of the Scotland Act 1998 to “veto” Sturgeon’s Bill. This prevents it from receiving Royal Assent and so passing into law. That this is the first time section 35 has been used speaks to the messiness of UK devolutionary arrangements, and the complex interplay between “reserved” and “devolved” powers.
Australian, Canadian, German, and American lawyers often unkindly refer to the UK’s attempt to carve powers for the four Home Nations from the body of a unitary state as “NQF”—not quite federalism—because the system is so idiosyncratic. These are countries, remember. Yet, during the coronavirus pandemic, Wales—a country—could not close its borders, while Western Australia, a mere state in a federal system, could.
The Scottish Parliament is a creature of statute. Its powers are borrowed ones, derived ultimately from Westminster, which, in its turn, is “sovereign” or “supreme.” Holyrood has “competence” to enact primary legislation, which in practice is anything that doesn’t relate to reserved matters. This means MSPs can change common law rules (an old power—remember, Scotland has a different, Roman-law-inflected legal system) or repeal Westminster acts if they fall outside the list of reserved matters in Schedule 5 or aren’t “protected from modification” under Schedule 4.
Ordinarily, if Westminster (or Scotland’s Lord Advocate) believed a Holyrood Bill related to a reserved matter, then one or another of the designated law officers in either the UK or Scotland could refer it to the UK Supreme Court—also before Royal Assent—under Section 33 of the Scotland Act. That leaves the courts with the final word. This is a familiar process, last used in November 2022 when the SNP’s claim that it could enact legislation for a second referendum on Scottish independence without Westminster’s permission was tested in the UK’s top appellate court and found wanting.
Section 35: The Nuclear Option
Disagreement over the workings of the Gender Recognition Act—reserved or devolved or (more likely) a bit of both—is why Westminster has taken the Section 35 nuclear option. PM Rishi Sunak also argues that the Scottish legislation’s proposed changes to the GRA create conflicts with the UK-wide Equality Act 2010.
Section 35 gives the Secretary of State immense power to order Holyrood’s Presiding Officer not to submit a Scottish Bill for Royal Assent if one of two tests are met. This is the case even if the Bill falls entirely within devolved competence and doesn’t relate to reserved matters.
For Section 35 to apply, the Holyrood Bill being blocked must make (a) “modifications of the law as it applies to reserved matters” that (b) the Secretary of State has “reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.”
Both tests are amenable to judicial review. Before last Wednesday, Sturgeon gave every sign of refusing to negotiate with Westminster over the substantive content of the Bill and going to trial in the Scottish courts. That decision is now up to her successor. At time of writing, rumours that the gender reforms will be “parked somewhere as quickly as possible” are in wide circulation.
Holyrood v Westminster
If England and Wales underwent a political realignment over Brexit, something I’ve discussed previously for Law & Liberty, then it’s fair to say Scotland has undergone a similar realignment over independence. This means Scotland’s famously disciplined Nationalists have been able to depict conflicts between Westminster and Holyrood as the big one bullying the wee one, uniting a plurality of Scots behind their cause.
Nicola Sturgeon thus expected any fight over gender recognition to form part of a wider pro-independence battle, one where—once again—Westminster was stymieing the democratic will of the Scottish people.
She was to be brought undone, catastrophically, by events.
Over the course of a decade, initially in the academy and then more widely—including in repeated litigation, which is how the UK came to be called “TERF Island” in the first place—those opposed to gender self-identification have argued that it will lead to men identifying themselves into domestic violence and rape crisis shelters. Or landing themselves in the female prison estate.
In 2004, these fears seemed unfounded. The few male-to-female transgender people of concern to lawmakers had all been castrated, and not just chemically. Despite feminist claims to the contrary, rape is about sex and not power. If you cut a man’s nuts off, he won’t do it because he can’t. There’s a reason Muslim caliphs guarded their harems with eunuchs. However, in the gap between 2004 and 2022, campaigners argued (successfully) that it was a human rights breach to make obtaining a GRC conditional on castration or sterilisation. Castration and sterilisation, they pointed out, were things Nazis did, and that we did to Alan Turing.
This, coupled with the rise of gender identity ideology nurtured in the intellectual swamp of the modern university, facilitated the emergence of intact males adopting a transgender identity. Some got a GRC. Others did not. Meanwhile, Self-ID’s opponents continued to warn that if anyone is allowed to self-identify, then predatory men would seize the opportunity to be housed with their prey—and safely away from other predators higher up the prison food chain.
Male, Female, and Rapist
After Adam Graham was arrested and charged with rape, he decided he was a woman. He adopted a female name—Isla Bryson—donning a blonde wig and girly coat and revealing tracksuit trousers. The Scottish prison service took his word for it. If he said he was a woman, she must be one. Thus were the inmates of Scotland’s sole all-woman prison joined by a convicted double rapist.
Only when news of this broke to general outrage did Sturgeon have Graham transferred to an all-male unit. Then another story emerged, in the process disclosing that Scotland’s prison estate had been behaving for some time as though Self-ID were already law. Tiffany Scott—who as Andrew Burns stalked a 13-year-old girl, and who’d been serially violent towards other inmates, wardens and female nurses—was also set for transfer to the female estate. His move was blocked.
At this point, Scotland’s prisons capitulated, announcing that they would base decisions on where to send inmates entirely on biological sex.
The net effects of the furore were as follows.
First, reduction of the famously well-spoken, composed Nicola Sturgeon to babbling incoherence in full glare of the media spotlight. There was even an extraordinary moment where—in response to journalistic inquiries and in the Scottish parliament itself—she refused to say whether she thought Graham was a woman, despite her previous stance on self-identification. In attempting to avoid falling into a giant, pronoun-filled quagmire, she referred to Graham as “the person” and “a rapist.” Hilariously, BBC Scotland followed suit. There were now three sexes in Scotland: male, female, and rapist.
In Scots law, note, the crime of rape must be committed with a penis.
Next came the discovery that the gender recognition reforms on which she planned to base her fight with Westminster were catastrophically unpopular. Nine of the UK’s ten most anti-trans constituencies are in Scotland.
Finally, Alex Salmond—Scotland’s former First Minister, a man with his own chequered history—waded into the debate at a Dundee Burns Supper, castigating his successor with all the fire of a Minister of the Kirk dredged up from Scotland’s Pre-Enlightenment, God-bothering past.
“To get to a position when you say to a majority of our people,” he thundered, “that you cannot have single-sex spaces—prized and worked and strived for—because of some daft ideology imported from elsewhere…borders on the absurd.” As Salmond also pointed out in the same speech, public support for both the SNP and Sturgeon herself was sliding into negative territory, with the wider movement for Scottish independence threatening to unravel.
A tongue-tied Sturgeon responded—to the best of her ability—by making the traditional liberal argument that we mustn’t “accept that the actions of an individual somehow forms a justification for taking rights from the whole group, or not according rights to that group.”
The problem, of course, is that we do. We do this to men.
We know not all men are bad. But we also know most bad people are men. If you are a man, your right to enter certain localities or do certain things is curtailed by the actions of other men. Even when your crime is a non-violent one, if you’re male, you’re more likely to cop what lawyers call a “custodial.”
Yes, it’s true as a matter of historical record that many men often did not take this (relatively modern) development well. It’s also true that some schools of feminism have made too much of it, crafting an argument for female superiority based on greater male criminality, as though women were somehow not female Homo sapiens, and so without statistically significant, systemic character flaws.
This complexity has been amplified thanks to the public’s discovery that around 60% of trans women in UK prisons are sex offenders. That’s significantly higher than the roughly 18% of the male estate who are jailed for sexual offences. It also means that the starkly rising rates of rape by “women” are not what they seem.
Western civilisation is probably not yet prepared—on either side of the Atlantic—to treat honestly with average differences between groups, especially when those differences manifest in the form of violent crime and sex offences. Covid exposed the extent to which most people do not grasp statistical base rates. Now imagine that fraught process repeated and applied to historically disadvantaged minorities, not just male-to-female transgender people.
Trans women are women. Trans rights are human rights.
Nicola Sturgeon thought both mantras paved a path to Scottish independence. Instead, she found herself trapped inside them while Adam Graham’s violent reality smoked her out. And now, unless her leaderless, rudderless party backs down and shelves her Bill, Britain’s highest courts will be called upon to adjudicate this most deranged of constitutional crises.
Once again, Scotland produces more politics than can be consumed locally.