The Observer view on Scotland’s controversial proposed gender reforms | Observer editorial

There is a respectful compromise to be had – but it requires politicians to chose balance over toxicity

What is a woman? The answer to this question has become a highly contentious political issue. It lies at the heart of a rights conflict that has turned toxic, between those who believe someone’s self-declared gender identity should override biological sex for the purposes of single-sex services and sports and those who think biological sex remains a relevant concept in law and society. That conflict comes to a head this week in Scotland, where MSPs will vote on the SNP’s reforms to require people to be legally treated as the opposite sex on the basis of self-identification.

The UK was one of the first countries to introduce important legal protections against discrimination for trans people in 1999; these are today enshrined in the 2010 Equality Act under the protected characteristic of “gender reassignment”. It also protects women against sex discrimination and sets out that it is lawful to provide female-only services and sports – excluding anyone male, regardless of gender identity – if they are a proportionate way of achieving a legitimate aim. It is a sophisticated legal balancing act. A small group of trans people – around 5,000 – have, however, changed their sex for most legal purposes under provisions in the 2004 Gender Recognition Act. Obtaining a gender recognition certificate (GRC) requires a medical diagnosis of gender dysphoria and proof that someone has been living as the opposite sex for at least two years. But it has been unclear whether a GRC changes someone’s sex for the purposes of the Equality Act.

The Scottish courts last week ruled that it does. This ruling may still be appealed against but if it stands it has huge implications for what Nicola Sturgeon’s gender self-ID reforms mean for the rights of Scottish women and girls. This is why both the Equality and Human Rights Commission and the UN Special Rapporteur on violence against women and girls have urged the Scottish government to pause on this legislation.

These reforms will grant a GRC to any male who declares that they intend to live as the opposite sex, despite Scottish ministers being unable to define what living as the opposite sex means in practice. The Scottish government has predicted that this will result in a tenfold increase in the number of people who will be granted GRCs. It has improbably claimed this is an administrative change with no consequences for women’s rights, while at the same time arguing in court that a GRC changes someone’s sex for the purposes of the Equality Act.

These reforms will make it harder for women to access female-only services and spaces, such as prisons, hospital wards and intimate care. They make it more complex for providers to legally justify the provision of single-sex services and are likely to increase the number of public sector providers who say privacy provisions for GRCs prevent them from granting requests for same-sex intimate care such as toileting and dressing.

That is wrong: just as trans people have the right to access specialist services and gender-neutral spaces appropriate for their needs, women have the right on grounds of privacy and dignity to access female-only spaces where they are vulnerable, undressing or receiving intimate care. Female-only spaces are also an important form of safeguarding in a world where male violence makes up the overwhelming majority of societal violence, including sexual violence. Sturgeon’s reforms would allow any man who signs a declaration to have enhanced legal rights to access spaces where women undress and are vulnerable. There are cases of male sex offenders identifying as women after their convictions. A Scottish male sex offender who identifies as a woman sexually assaulted a 10-year-old girl, but has now been placed in a women’s prison after violently attacking an inmate in a men’s prison. The SNP will no doubt place stock in implausible claims from the UN expert on gender identity that its reforms pose no risk to women, but they directly contradict the evidence of his colleague who is an expert on violence against woman and girls. Self-ID is also likely to make it harder for some women to prove pay discrimination in court.

The other major issue with the reforms is that they introduce provisions to allow children aged 16 and 17 to change their legal sex through self-ID. This moves Scotland in the opposite direction to England, where an independent review by Dr Hilary Cass, one of the country’s most senior paediatricians, has established that gender dysphoria often resolves itself after puberty, gender identities can remain in flux until a young person’s early-20s and treating a young person as though they are the opposite sex is an intervention with potentially significant impacts on psychological functioning, with insufficient evidence about outcomes.

Rather than grappling with these serious concerns, the SNP-Green governing partnership has variously dismissed them as transphobic, invalid and artificial. The reforms have prompted the biggest-ever SNP backbench rebellion, yet they look almost certain to pass with the support of Scottish Labour.

The respectful compromise would be to introduce a form of legal self-identification for gender identity for trans people while clarifying that this does not change someone’s sex for the purposes of the Equality Act. A clear distinction between gender identity and biological sex in law would balance the legitimate rights of trans people and those of women, protecting both groups against discrimination but establishing beyond doubt that it is lawful to provide female-only services for women as a matter of privacy, dignity and safety. But in Scotland and Westminster, self-described progressive politicians have proved too gutless to advocate balance and compromise. It is marginalised women – in prison, in domestic abuse services, and who require intimate care as a result of disability – who will bear the consequences of their cowardice.

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