THE most important question about the Scottish Gender Recognition Reform (GRR) Bill as passed by the Holyrood parliament is whether Nicola Sturgeon, the leader of the nationalist government, envisaged the chaotic outcome of her proposed new law or not.
I have already written in TCW about the evidence which suggests she deliberately chose this issue as one which she could use to manufacture conflict with the British government. That much we know. The question then is whether she accidentally or deliberately ignored the likely consequences of her latest offensive against the United Kingdom.
In the context of the Isla Bryson case, the question is: were the inmates of the Scottish female prison at Cornton Vale near Stirling to be used a ‘cannon fodder’ for Sturgeon’s scheme to nip the ankles of the Secretary of State for Scotland, Alister Jack, and through him the ankles of the UK government?
That question can be answered by reading the evidence given to the Scottish parliament’s Equalities, Human Rights and Civil Justice Committee in preparation for submitting the GRR Bill to the full parliament. Were warnings given about ‘bad actors’ trying to abuse female-only prisons by dishonestly awarding themselves gender recognition certificates (GRCs) using the process of self-certification (self-ID) which the new law allows, so they could get into women-only prisons? Put simply: was Sturgeon warned in advance that issues like the Isla Bryson case were likely to crop up?
The evidence taken by the Committee was voluminous, but the persistent inquirer will be rewarded by nuggets like this from the session on May 31 2022. Dr Kate Coleman from Keep Prisons Single Sex said: ‘Wherever allocation is on the basis of self-ID it is, frankly, disastrous for women in prison.’
She continued: ‘Someone who is now a prisoner in Ireland [which allows self-ID] was refused a diagnosis of gender dysphoria at a clinic in England and so was unable to pursue a GRC through that route, but they then, on the basis of self-ID, were able to obtain a GRC in Ireland, and the impact of the management of that prisoner in the female estate has been catastrophic for women in prison.’
Dr Coleman described a case with many similarities to the Isla Bryson one: ‘We can look at the example that was reported in the media last weekend of a male-bodied trans woman prisoner with a GRC, with intact male genitalia, who, it was reported, had consensual sex with a very young female prisoner. If that prisoner had not had a GRC, they would probably not have been in the female estate to start with, because things such as anatomy are taken into consideration when making those decisions. Now, where is that prisoner to be moved to? If that prisoner had not had a GRC, they would have been moved back to the male estate as clearly posing an unmanageable risk that puts women who are in prison at risk of pregnancy, for a start. However, because that prisoner has a GRC, they cannot be moved from the estate.’
That surely would have been clear enough, if the government knew what it was talking about. But it did not, literally. Susan Smith of For Women Scotland told the committee: ‘The Scottish government does not have a definition of gender.’
That may sound like bus queue banter, but For Women Scotland was the body which won an important case in the Court of Session in February 2022 on this matter. Lady Dorrian delivered the Opinion of the Court when she said that the Scottish government exceeded its powers by including trans women in the definition of woman in the Gender Representation on Public Boards (Scotland) Act 2018. The judges restated that the protected characteristic of sex refers to either a male or a female and that provisions in favour of women must, by definition, exclude those who are biologically male.
Nothing could be clearer, you would have thought, at least until the age issue was introduced by the Sturgeon government in order to exacerbate the conflict with the UK government. Sturgeon’s Bill not only introduces self-ID but also reduces the age at which this may legally be obtained from 18 to 16.
‘The problem with putting ages on anything,’ Smith told the committee, ‘is that it can be quite arbitrary. We know that there are areas where we allow 16-year-olds to do things, and there are other areas where we have more concerns. For example, a 16-year-old cannot get a tattoo, because that is considered quite a major decision. It seems slightly odd to say that they cannot get a tattoo but they can change their sex.’
Lack of space forbids me to go on, but I could, believe me! The fact is that the evidence was voluminous. Sturgeon either knew or ought to have known that the Isla Bryson case was likely to happen sooner or later if self-ID were to be allowed in Scotland. I will therefore end with the comments of Lucy Hunter Blackburn who spoke on behalf of MurrayBlackburnMackenzie, which describes itself as ‘an independent policy analysis collective’. She said many interesting things, but two comments stand out in connection with Sturgeon’s embarrassment.
The first concerns the law itself. ‘I speak based on 20 years in policy making,’ Blackburn said. ‘Most of that time was in what is now the Scottish Government, and in the years since I have been researching public policy, so I am serious when I say that the process leading to the introduction of the Bill has been exceptionally poor and is a recipe for bad law.’
The law could have been corrected. But that was not what the Scottish government was interested in, clearly, since it was never done.
Ms Blackburn’s second point concerned the rush to legislate. This is what she said about Holyrood’s bureaucratic alter egoand its blindness to any policy other than Sturgeon’s one of self-ID: ‘When we met civil servants, we asked them what options analysis there had been, when they were looking at the Bill, of alternatives to taking out the diagnosis of gender dysphoria, and we were surprised to learn that they had not looked at any alternatives that retained any form of medical gatekeeping. Instead, they had gone straight to the self-ID model. It bothered me, as a former civil servant, that over the period there had been no options appraisal of the different ways of approaching the matter.’
Finally, a comment of my own might explain the apparent disconnect between information going in to government and legislation coming out of it. Over 30 years or so, I have been involved in numerous ‘consultations’ of the sort this committee was trying to conduct. I have never, in a single case, known of any government, Labour or SNP, which listened to those it consulted to the extent that policy or proposed legislation was materially improved. The whole process is a sham. It is nothing more than an expensive way of deceiving the public into believing that the powers in the land care about what the people think.
Had Sturgeon taken this consultation seriously, and listened to what the witnesses told the committee, she could have avoided the Isla Bryson embarrassment. But she did not. She was more interested in Alister Jack’s ankles than in Isla Bryson’s genitals, even though they might one day loom so large for the First Minister that they could quite conceivably trip her up and topple her government.