For a while, it seemed as though Scotland was taking the lead on challenging the new gender orthodoxy. Despite all the odds (and taxpayer funding) being on the other side, gender-critical feminist campaigners secured a last-minute pause in the Scottish government’s plans to banish medical experts from the gender recognition process and shift to self-identification.
Then came Humza Yousaf’s hate crime bill, with its new offence of ‘stirring up hatred’ against a litany of protected characteristics, among them ‘transgender identity’. Scotland fell behind further when UK equalities minister Liz Truss ditched plans for trans self-ID in England and schools were issued thorough guidance on the kinds of groups and materials teachers may rely on when instructing about sex and relationships. The Conservative government hasn’t been infiltrated by Julie Bindel and the Cabinet handbook replaced with a dog-eared copy of The Transsexual Empire; feminists have simply leveraged what remains of Tory scepticism to their advantage.
Feminists north of the border face a different character of government, one sceptical of nothing that can crowbar the words ‘Scottish’ or ‘progressive’ into its synopsis. In embracing the ideology of trans activists, as opposed to pursuing careful reforms that would make trans people’s lives easier, Nicola Sturgeon’s government sees an opportunity to be not only progressive but, importantly, more progressive than England. Dissenters, however, are getting better organised and getting results. For Women Scotland, a small collective which is pushing back against this agenda, has secured a judicial review at the Court of Session over what it argues is an attempt by the Scottish government to redefine the meaning of ‘women’.
The origins of the dispute lie in the Gender Representation on Public Boards (Scotland) Act 2018, legislation to increase women’s presence around the top table in government agencies and public commissions. In normal circumstances — a distant memory by now — feminists would have considered such a law a victory. However, buried in the statutory guidance for the Act is an unusual definition of ‘women’, one that appears to include people who are not women.
Transwomen — biological men who identify as women — will be considered women under the Act provided they meet the Equality Act 2010’s ‘gender reassignment’ characteristic, have or intend to change their sex from male to female, and are living as women. This is actually fairly restrained as this sort of legislative jiggery-pokery goes, but what concerns For Women Scotland is this line:
The Act does not require an appointing person to ask a candidate to prove that they meet the definition of woman in the Act.
That, they suspect, is self-identification through the back door, a marker set down to be taken further later on.
If you’ve been following my Coffee House posts on this — Spectator readers should be awarded a PhD in gender studies upon renewing their annual subscriptions — you might remember that For Women Scotland secured a legal opinion from Aidan O’Neill, the QC who defeated the UK Government in the Supreme Court over prorogation. On the strength of his analysis, they instructed solicitors to write to the Scottish government warning ministers that they were overstepping their legal authority by interfering in matters emanating from the Equality Act. After getting the brush off, they pressed the Court of Session for a judicial review and on Friday Scotland’s highest civil court granted their request.
The substantive hearing has been scheduled for January 7, 2021, and For Women Scotland intend to make six key arguments in court:
- Equal opportunities law is reserved and the legislation is therefore ultra vires.
- Scottish ministers have conflated ‘sex’ and ‘gender reassignment’, which are distinct characteristics under the Equality Act.
- The statutory guidance defines as ‘women’ people the Equality Act says are male, while excluding biological women who identify as male.
- The Scottish government’s redefinition of what constitutes a woman ‘goes against the very grain of the Equality Act’ and is out-of-step with ‘decades of anti-discrimination law’.
- The Act is incompatible with EU law, which permits ‘positive action’ only in relation to the sexes and not competing gender identities.
- Ministers did not carry out an equality impact assessment to determine whether their legislation was likely to increase or decrease equality between men and women and whether it would foster good relations.
Many of the legal arguments involved are fairly abstruse, but For Women Scotland stresses that they are trying to avoid real-world consequences rather than win theoretical points about statutory construction. They claim that if the Scottish government is allowed to ‘misuse’ the protected characteristic of sex in this Act, it will be emboldened to do so elsewhere. As an example, they point to a dispute over whether Holyrood’s forensic medical services bill will allow women reporting rape to choose the sex or the gender of the person who examines them. They contend, too, that other devolved administrations may follow in the SNP’s footsteps if the courts fail to lay down the law.
As an outsider peering in on the gender wars, what strikes me most about the conflict is how women who refuse to go along with hardline trans ideology have been thoroughly abandoned by their erstwhile comrades on the left. Not just abandoned, but ridiculed, traduced, vilified and, if their foes get their way, excommunicated from polite progressive society, and removed from positions in public and cultural life. Again as an outsider, it all looks rather like an attempt at making bothersome women disappear, a vanishing of those who refuse to let their rights be vanished. It’s strange, really, when you think about it. Feminism has been at odds with conservatism for so long and yet it never occurred to the right to simply redefine women out of their rights. It took the left to come up with that.
For Women Scotland have so far raised over £10,000 of a £60,000 crowdfunding target to meet their legal costs. Unlike their opponents, they receive no funding from the Scottish government. They need your solidarity, no doubt about it, but right now they need your coin more.
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