The provision of identity lies at the heart of a modern state. But a person’s sense of who they are is not as fixed as it once was. UK law has yet to catch up with the idea that people can identify in many ways. It’s easier, perhaps, to continue with the status quo. Often reforms fail because legitimate concerns cannot be assuaged or they do not attract the support of the public. Reactionary politicians can also successfully exploit fears about change. All these reasons, and more, lie behind the repeated failure by the Westminster government to update the 2004 Gender Recognition Act (GRA), the law that enables transgender people in Britain to have their acquired gender recognised.
The SNP leader, Nicola Sturgeon, deserves credit for to attempting to modernise the law by taking into account the concerns of a vulnerable, marginalised community through democratic debate. Scottish parties split over the process, which resulted in a bill that liberalises the rules on changing legal gender in Scotland. Holyrood has made good on Theresa May’s pledge, as Conservative prime minister in 2017, to “streamlin[e] and demedicalis[e] the process for changing gender”. While Mrs May’s parliamentary faction remains influential, it is the grassroots’ favourite rightwinger Kemi Badenoch who, as the Tory equalities minister, has a louder legislative voice.
The result is that the Conservative government invoked article 35 of the 1998 Scotland Act to overrule the Scottish bill. Withholding royal assent from Holyrood’s law is not good for devolution. Making this a constitutional battle line might suit the Tories and the SNP, but this would be bad for Britain. The government says it is within its rights to exercise the nuclear option – as enabling a person to be legally recognised as the opposite sex by a process close to self-identification would affect equality legislation, an issue “reserved” for Westminster. The matter will probably end up in the UK supreme court.
Scotland’s reforms proposed dropping the age limit for a gender recognition certificate from 18 to 16 and doing away with the required medical diagnosis of gender dysphoria. There are fears, which cannot be lightly dismissed, that this move would expose women-only services to men falsely claiming to be transgender. It seems more of a stretch to suggest “gender tourism” would result, with people going to Scotland for a gender recognition certificate and then moving to other parts of the UK. The SNP says that 25 to 35 people a year in Scotland are currently certified under the GRA. The UK government says Scotland’s bill could see this rise to 550. Ms Sturgeon reckons half that. Ireland has seen “self-identification” cases double to 195 since 2016, after similar laws were introduced.
Ms Badenoch is battening down the hatches. She wants to make it harder to obtain UK legal gender recognition with certificates from countries that she thinks aren’t as “rigorous” as the UK. The minister, caught on tape disparaging trans people, hardly inspires hope for sensitive handling of the issue. While reflexive judgments and sweeping dismissals might excite the Tory base, they risk repelling many voters. Hence the government’s welcome noises about banning trans conversion therapies. It is encouraging that the Tory education secretary and the Labour leader can respectfully disagree, between themselves and their parties, about whether 16 is old enough to change gender. There is room for compromise and generosity in these debates. Politicians must not let them become so toxic that they find it difficult to meaningfully intervene.
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