Comment: Allowing 'self-id' will make it harder to prevent men invading women-only spaces

Individual politicians come and go, governments are voted in and out of office, but the collective imprint of legislators is left on the statute book.

Through votes taken in committee rooms and the Chamber, politicians leave a legacy, the consequences of which are felt long after they have left the political stage. This is as true for unintended consequences as for intended ones.

MSPs routinely invoke the symbolic function of law, beyond any legal effects. Legislative proposals may be brought forward, at least in part, to “send a message”, for instance, to reinforce particular behaviours, or to encourage attitudinal or cultural change. Launching the draft Hate Crime and Public Order (Scotland) Bill, passed shortly before the last election, then Cabinet Secretary for Justice Humza Yousaf stated that:

“By creating robust laws for the justice system, Parliament will send a strong message to victims, perpetrators, communities and to wider society that offences motivated by prejudice will be treated seriously and will not be tolerated.”

Introducing his private member’s bill to remove the defence of ‘reasonable chastisement’ which allowed parents to use physical punishment on children, the then Green MSP John Finnie told the parliament that his bill was not intended to bring about a rise in the number of parents being prosecuted, but to “send a ‘direction of travel’ about child welfare and child upbringing.”

When the bill’s provisions came into force in November 2020, the Scottish Government stated that, “The removal of this defence reaffirms that we want this country to be the best place in the world for children to grow up…”  

Following the repeal of the unpopular Offensive Behaviour at Football Act, the then Community Justice Minister Annabelle Ewing cautioned this would “send the message” that parliament was “happy to let this behaviour go unchecked and unchallenged”.

Very shortly, the Scottish Government will bring forward legislation to reform the Gender Recognition Act 2004 (GRA). Currently, individuals can change their sex in law provided they have been diagnosed with gender dysphoria and have ‘lived in their acquired gender’ for two years (although ministers are either reluctant or unable to state what the latter means in practice). Ministers intend to enable people to change their legal sex by means of a statutory declaration (often termed ‘self-identification’ or ‘self-ID’), without any medical oversight.

Ministers maintain that these proposals will have no impact on the ability to operate single sex spaces, services and protections lawfully provided for women. Technical arguments about legislation aside, this is fanciful, not least because it disregards how, via the messages it conveys, the law seeps into social conventions.  

Ministers are endorsing the principle that if someone born male wishes to be seen and treated as if they had been born female, that is something that society at large should accept, based only on their personal declaration and subjective definition of what that means.

That gender recognition reform extends beyond strict legal effects to the affirmation of a person’s subjective identity was underscored in the report of a recent inquiry by the Westminster Women and Equalities Select Committee. It stated that:

“A large number of respondents felt that obtaining a GRC gave, or would give, legal and/or societal validation.”

This matters because it is not the production of a birth certificate that keeps men out of women’s spaces. It is largely the product of social norms that - at least until recently - women felt confident invoking and men felt conspicuous breaking. That meant most women encountering an obviously male person in a woman-only space felt able to challenge his presence or, if afraid to do so in the moment, felt able to raise it with the relevant authority.

But that social convention is already breaking down.

Signs appearing in women’s toilets at UK universities tell young women that if they “feel like someone is using the ‘wrong’ bathroom”, they should not challenge them and “not purposely make them feel uncomfortable”.  

In March 2020, the Glasgow Evening Times reported that two men complained to the management of a large department store, after women objected to their using the changing area designated for bra fitting: they said that they would have found comments they overheard upsetting, had they been transgender. The store reportedly apologised to them.

Last month, a male reporter for The Daily Mail was able to enter female changing rooms in a number of high street stores after telling store staff that he identified as a woman.

The Scottish Governments proposals will most likely make this situation worse and harder to challenge.

Nowhere do the ‘lines to take’ provided by the Scottish Government to the media on gender recognition reform acknowledge that the law leaks into social conventions and norms. How legislation that enshrines sex as a matter of self-declaration can be expected to increase, for some males, a sense of entitlement to be in a woman-only space, regardless of their appearance or whether they possess a Gender Recognition Certificate.

And how in turn, this will chip away at the confidence of women and girls, and junior staff in frontline jobs, to challenge the presence of men in women’s spaces. Once the State endorses the principle that a woman is anyone who declares they are one, the niceties of the Equality Act and its exemptions will become increasingly academic.

In other arenas, the Scottish Government is clear that words on the statute book have power beyond their strict legal effect. Yet Ministers seem blind to that here. This risk was drawn to their attention in a consultation that closed almost two years ago. Now on the brink of introducing legislation, Minsters have yet to show any sign of engaging with it.

Either the law sends a message, or it does not. And the message sent by the government’s proposed reform of the GRA will have stark consequences for women and girls.