It is not bigotry, nor is it 'anti-trans', to put women and children first

Yesterday’s judgment by Lady Haldane is good news for everyone. She ruled that the UK Government was right when it blocked the Scottish Government’s Gender Recognition Reform Bill. Much has already been written about why the bill was incompetent, and why it would have been bad news for women and children, but where does this decision leave transsexuals?

As someone who transitioned over a decade ago, I should know. For the last seven years, I have watched “self-ID” campaigns unfold with increasing horror. The original Gender Recognition Act of 2004 was remarkable legislation. In essence, it created a legal fiction – that a transsexual person was the opposite sex and “for all purposes” – and then hid that change from public view. Indeed, it remains a criminal offence punishable by an unlimited fine for someone in an official position to disclose the information to anyone else.

This is powerful legislation, despite what some campaigners might say. For transsexuals who have been through a process of social, medical and surgical transition it protects them from being outed by officials.

Before the Equality Act was passed in 2010, secrecy about their past may have been necessary to protect their jobs, housing and their access to goods and services. A gender recognition certificate was never designed to be a badge of honour, or a means to demand that other people ignore the evidence of their own eyes when deciding what pronouns to use or which toilet to direct them towards.

Yes it was a legal fiction, but it was one that was respected because of the assumption that there was a process behind it – and one that required professionals to sign off references. Those checks and balances were never unreasonable hurdles, they were necessary safeguards. Too many politicians have ignored that truth, preferring to listen to lobby groups that espoused the message that anyone could do as they pleased and – presumably – nobody would take advantage. The Scottish GRR bill was flawed in that respect from the outset.

Nicola Sturgeon was not unlucky when a rapist calling himself Isla Bryson was sent to Cornton Vale women’s prison early this year – the Scottish Prison Service were already well ahead of the law – she had presided over the system that had enabled that abuse to occur. But the fiasco brought the matter to public attention, and when Alister Jack – the Tory Secretary of State for Scotland – made the Section 35 order to block the bill there was widespread relief. Had she and, later, Humza Yousaf read the mood of the voters they might have left the matter there. A lucky escape, perhaps, from a ludicrous bill.

But, instead, spurred on by their Scottish Green allies, the SNP Government challenged Jack’s ruling in the courts and have now ended up with egg on their faces. I have no sympathy for them whatsoever. I may live in England, but the legal bills that both sides have amassed will have to be paid for, and no doubt end up in my taxes. Yousaf should ignore any demands from Scottish Greens to appeal the decision further, and throw good money after bad.

The risk is not only to the public purse but the acceptance of transsexuals. The electorate is tiring of being told what to think – transwomen are not the same as women, we all know that – and becoming more alert to the safeguarding weaknesses that arise when the law treats some male people in the same way as female people.

Women find it impossible to protect single-sex spaces and associations when men can swap all their sex markers, and not be required to disclose the change. Meanwhile too many children have lapped up the fantasy that the legal fiction is a scientific fact, and they can be the opposite sex. Some of them have suffered irreversible changes to their bodies while others have been left in a limbo that has devastated their mental health.

It is not bigotry, nor is it “anti-trans” thinking to put women and children first, and leave transsexuals to our fate. Exasperation has reached such a level that it is reasonable and understandable. That is not the fault of Alister Jack nor his Cabinet colleagues including Kemi Badenoch who earlier this week called out the transitioning of same-sex attracted youngsters as “a new form of conversion therapy”. No, the responsibility falls squarely on Yousaf, Sturgeon and others who ignored reality, and listened instead to the likes of Stonewall UK.

If the Scottish Government cares about women, children – and transsexuals – this legal challenge needs to stop here. Not only that, safeguarding protections need to be strengthened so that gender recognition certificates are issued with rather more caution and some respect is restored in the system. But that is something for the Westminster to consider. Whatever else we have learned from this debacle, where gender recognition is concerned, it makes no sense for different rules to apply in different parts of the United Kingdom. 

Debbie Hayton is a teacher and journalist. Her book Transsexual Apostate: My Journey Back to Reality will be published by Forum on 8 February 2024.