Photograph: Jane Barlow/PA
It would be lovely to live in a world where everyone had good intentions. No violence, no child abuse, no robbery. Women wouldn’t have to feel nervous about walking home at night, parents wouldn’t have to worry about children playing out. But no society is crime-free, which is why we have the law, the courts and the police.
That has not stopped Nicola Sturgeon asking Scottish women to pretend they live in a utopia. To make it easier for people to legally change their sex, the first minister is pushing through reforms that many believe would compromise women’s safety. Last week, Reem Alsalem, the UN special rapporteur on violence against women and girls, wrote to Sturgeon to warn her it would be open to abuse by male sex offenders, endangering women and girls. The Equality and Human Rights Commission (EHRC) has also flagged its concerns.
All trans people in the UK have the same robust protections against discrimination as other protected groups under the 2010 Equality Act and the UK was one of the first countries to enshrine such legal protections in 1999. Anyone male who is discriminated against as a result of being perceived as female is also protected against sex discrimination. These are critical legal safeguards. Trans people can also change their sex marker on official documents such as passports.
A small number of trans people in the UK – around 5,000 – have extra rights because they have applied for a gender recognition certificate (GRC) to change their sex for many legal purposes. Lawyers disagree on exactly what this means; the law is unclear. But many think that a GRC changes the threshold at which it is lawful to exclude someone male who identifies as a woman from female-only spaces, such as prisons, hospital wards, refuges and changing rooms. And most agree that increasing the number of males with GRCs would fundamentally shift how other Equality Act provisions to protect women, such as on equal pay, work.
At the moment, in order for someone male to be recognised as a woman in law – thus getting additional rights to access women’s spaces – they have to obtain a medical diagnosis of gender dysphoria and show that they have been living as the opposite sex for two years. Sturgeon is pressing through reforms that would shift Scotland to “self-ID” – any male who has lived as if they were of the opposite sex for three months and who signs a self-declaration will be granted a GRC. No Scottish minister has been able to say what living as the opposite sex actually means (and the EHRC has noted this provision risks reinforcing harmful sexist stereotypes).
The legal uncertainty in the existing system has left space for self-ID campaigners to misrepresent the law to service providers and employers, telling them they must treat someone who identifies as the opposite sex as that sex without exception. This is not true and leaves organisations at risk of unlawfully discriminating against women, as Essex University was found to have done.
But the Scottish reforms would make it materially harder for women to access single-sex services in line with their rights. The Scottish government expects a large increase in the number of GRCs as a result, which will make providers warier of providing single-sex services because it tips the legal balance away from women. One Scottish NHS trust already says that the privacy stipulations around GRCs mean it is impossible for them to accommodate a woman’s request for female-only care; under Sturgeon’s reforms, that will become more common.
Single-sex spaces matter because women have the right, as a matter of privacy and dignity, not to be around people of the opposite sex when they are in vulnerable situations, receiving intimate care or undressing. But such spaces are also important for women’s safety. At the heart of the Scottish reforms is the question of whether the rights of a GRC should be extended from those with gender dysphoria – who experience genuine distress about their biological sex – to any man who says they identify as female, including men who derive sexual gratification from cross dressing, and male sex offenders looking for access to spaces where women are vulnerable, or who would prefer to be jailed with vulnerable women.
It takes an enviable level of naivety not to see the risks. Imagine the cover these legal protections would give to men who seek sexual pleasure from voyeurism or exposure and the control it would afford sex offenders over victims. Women who complain could just be tarred as “transphobic”, as they were when a convicted male sex offender who identified as female exposed their semi-erect penis to a young girl at a Californian spa.
There are already many cases of male sex offenders identifying as women after their convictions and they can effectively wipe their criminal record by registering a change of legal sex. The case of Katie Dolatowski is instructive: a Scottish male sex offender who assaulted two pre-teen girls assumed another identity that allowed them to live in a women’s refuge. She has now been moved to a woman’s prison after violently assaulting a fellow male prisoner. But the SNP has outright rejected amendments seeking to prevent male sex offenders from getting a GRC.
Another serious concern about the bill is that it would enable children aged 16 and 17 to change their legal sex. For years, campaigning charities such as Mermaids have succeeded in getting the NHS to put aside evidence and adopt an affirmative approach to children with gender dysphoria, arguing that it is always an indicator of a fixed trans identity. This has led the NHS to put growing numbers of children and young people on the path to irreversible medical treatment that can make them infertile and is likely to have other significant physical and cognitive risks.
But an ongoing review by senior paediatrician Hilary Cass has emphasised that in many cases gender dysphoria in children is transient and can be associated with discomfort about puberty, coming to grips with same-sex attraction, autism and childhood trauma. She has highlighted that social transition – changing a child’s pronouns and name – is not a neutral intervention.
Cass’s findings so far have prompted a dramatic shift in the way NHS England plans to care for children with gender dysphoria – new draft service specifications emphasise the risks of inappropriate social transition and that it should only be done on a case-by-case basis with medical supervision. Yet the Scottish government is ignoring the Cass review and opening up the ultimate form of social transition to children with no clinical input whatsoever.
Sturgeon remains blinkered: she has ignored female victims of male violence, treated the concerns of the UN special rapporteur dismissively and failed to listen to young people who received appalling care from NHS Scotland and now regret their transition. Her implausible mantra remains that no man will abuse the system, women’s rights are not affected and evidence reviewed by an English paediatrician has no relevance to Scottish children. Scottish Labour could still try to amend the bill to make clear that a GRC does not change someone’s sex for the purposes of the Equality Act.
But the most likely outcome is that Sturgeon, a self-professed feminist and nationalist, will leave the door wide open for a Conservative government in Westminster to step in to protect Scottish women, by updating the Equality Act to clarify its sex-based protections for women apply only to those who are biologically female.
• Sonia Sodha is an Observer columnist
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