Scottish Government concerned that amendments could scupper gender reforms

In an 11th hour bid to appeal to opposition parties and its own rebels, the Scottish Government has warned MSPs that passing amendments to the Gender Recognition Reform bill could render it legally incompetent and cause it to be delayed.

In a letter to several MSPs who have raised amendments in both the opposition and in the SNP and also to the Presiding Officer, and seen by Holyrood, Shona Robison has warned that if amendments are voted in at Stage 3 this week, which could risk the bill becoming outwith legislative competence, it would have “no option” but to move to delay the bill and refer it back to committee for further stage 2 consideration.

The move follows this evening's emergency evidence session of the Scottish Parliament's equalities committee, which heard from two UN experts who disagree on the potential unintended consequences of the legislation.

Speaking to the committee, the UN special rapporteur on violence against women Reem Alsalem warned that plans to introduce self-ID without sufficient safeguards may result in violent men taking advantage of loopholes.

But the UN’s independent expert on gender identity Victor Madrigal-Borloz argued there was “no evidence” that maintaining the current “complexity” of gender recognition was an effective safeguard against violent men.

The two independent consultants were speaking to MSPs ahead of the parliament considering over 150 amendments to the bill across nine hours on Tuesday afternoon.

A final debate and vote on the bill is scheduled to then take place on Wednesday.

Holyrood understands the Scottish Government is caught between its Green partners in government to push the bill through unchanged and the UK Government that has warned it could legally challenge the bill if passed.

The legislation is designed to simplify the process of obtaining a gender recognition certificate (GRC) by removing the need for a medical diagnosis and bringing in self-identification.

Alsalem last month wrote to the UK Government (as the member state of the UN) expressing concern about the Scottish Government’s bill.

She told MSPs on Monday that the legislation should be paused while issues with the Gender Recognition Act as it currently stands are dealt with, in particular making reference to how it interacts with the Equality Act and the impact on single-sex spaces.

She added that while she was not against the introduction of self-identification, “there is no proof anywhere that it should be unhinged, that we should have a complete disregard for safeguards”.

She said: “Violent males who can take advantage of any loopholes will do so in order to get into women’s spaces and have access to women. Our experiences of women born female tells us this.

“Of course, when it comes to policies where there is safeguarding, it does not mean by any means that therefore we are saying that everyone will commit offences… The issue is that we have to make sure there is protection in place for any policy where there is access to women and children.”

Asked how the bill would impact on women’s services, Alsalem said that there were “very real challenges” for service providers on how to exclude trans people using the exemptions set out by the Equality Act.

She said making it easier to obtain a GRC would inevitably lead to an increase in the number of people with GRCs, therefore creating “bigger challenges” for those service providers.

Madrigal-Borloz expressed concern about the “toxicity” of the debate around the bill, adding that much of the narrative was increasing “stigma” and “questioning the very existence of trans persons”.

On the question of the potential for predatory men to abuse the new system, he said: “I don’t think that trans communities and populations need to provide evidence of lack of abuse in the systems that have legal gender recognition based on self-identification.

“I think it is telling that in none of those countries, there are administrative or judicial findings of predatory men abusing the system to obtain access to places where they, as men, would not be entitled to gain access to.”

And on safeguards, he said: “In my view, there is no evidence and no legal analysis that concludes that maintaining complexity in the process of recognition of gender identity would be an effective safeguard for women in all of their diversity.”