DR PHILIPPA Whitford has said that the Scottish Government would effectively be “accepting devolution was over” if it did not launch a legal challenge over its gender legislation.
On Wednesday, Humza Yousaf announced he would be taking Westminster to court to challenge its “undemocratic” use of a Section 35 order to prevent the Gender Recognition Reform (Scotland) Bill from becoming law.
The legislation, which spent nine months making its way through Parliament, was passed by an overwhelming majority of MSPs from across the political spectrum last December.
Presenter Gary Robertson put it to Whitford that the case was “fairly pointless and a waste of money”.
Speaking on Good Morning Scotland, the MP said: “If they’re [the Scottish Government] going to just abandon something like this that was worked on for five or six years of consultation and spent nine months going through Parliament then they would literally just be accepting devolution was over.”
Some within the SNP, including Joanna Cherry and former leadership candidate Ash Regan, have spoken out against the Scottish Government going to court.
Regan said it would result in a “humiliating defeat”. The UK Government has cited a potential clash with the Equalities Act as a reason for why it blocked the legislation.
I cannot understand why @scotgov is taking legal action it’s unlikely to win rather than sorting out the problems with the #GRRbill at home. Reform could be effected in Scotland without breaching #equality or #HumanRights law if there was the will so to do. https://t.co/omPNfE1Ab9
— Joanna Cherry KC (@joannaccherry) April 12, 2023
Whitford explained: “Well it doesn’t clash with equalities legislation. People raise cases that relate to what the law is now. It’s the Equalities Act in 2010 that said if someone even proposed transitioning they have the protected characteristic of gender reassignment and that that legislation in 2010 no longer required a person to be under medical supervision.
“So organisations, sports bodies, women’s centres have all been acting along with the Equalities Act since 2010.”
Whitford continued: “The protection around equality for gender reassignment does not hang on whether you have a Gender Recognition Certificate (GRC).
“As I said from the moment you propose transitioning you have that protection by your employer, by any public body.”
The UK Government said in its statement of reasons that a GRC will "affect the circumstances in which a person can change their protected characteristic of sex under the 2010 act" and "expands the category of people who will be regarded as women".
When it was put to Whitford by Robertson that the key issue in the bill related to the age at which people would be able to legally change gender, she said: “Well we’ve got different ages of marriage Gary. Scotland had different ages for centuries, they re-aligned in the 20th century and just last month in England they were changed again.
“So are we saying that people who go on holiday from Scotland to England are suddenly not married.”
Robertson said that if there were different ages of changing gender then this could leave employers open to legal challenges.
One of the reasons given by the UK Government when it blocked the bill was that issues may arise “infrequently but significantly” on equal pay.
Whitford disputed this claim, saying: “The Equalities Act gives you that protection whether you have that certificate or not. There’s no mention in the Equalities Act of requiring a certificate and it already says that a person does not require to be under medical supervision.”
Asked if she agreed with Nicola Sturgeon’s assessment that critics of the reform were cloaking transphobic views, Whitford said she didn’t and that it was no longer possible to have a debate.
She said: “I think unfortunately the public discourse around it and particularly fuelled by social media has just become so aggressive.
“It’s just not possible to have the debate. I think there’s been people on both sides of the argument that have raised that temperature so women are concerned, they don’t feel their concerns have been soothed and trans people feel they’ve been turned into a political football.”
Whitford also hit out at both Alister Jack and Kemi Badenoch, who snubbed invitations to Scottish Parliament committees to discuss the legislation.
