Stoking a culture war? No, Nicola Sturgeon, this is about balancing conflicting rights | Sonia Sodha

Scottish gender reform plans jeopardise legal protections for women

The term “culture war” once had meaning: the weaponisation of socio-cultural issues to foment division. But, like the words bigoted and phobic, it is being rendered impotent by how often it is now used to mean “opinion I disagree with”.

Not just in social media spats: Nicola Sturgeon last week accused the Conservative government of “stoking a culture war” by using section 35 of the Scotland Act to block reforms allowing anyone over the age of 16 to change their sex for legal purposes through self-declaration. She claims UK ministers are thwarting a purely administrative reform that benefits a marginalised minority – trans people – to pick an illegitimate constitutional fight.

That argument collapses under scrutiny. Even as Scottish ministers claimed in Holyrood that this is an administrative matter, they were arguing in court that it has profound consequences for how someone is treated in the eyes of the law. They won; the courts have now clarified that if someone male gets a gender recognition certificate, they must be treated as though they were female for almost all legal purposes.

This has a number of knock-on effects on legal protections for women and girls. If someone male who identifies as female has changed their legal sex, it becomes more difficult to lawfully exclude them from female-only services and spaces, such as changing rooms, sexual assault services, prisons and hospital wards. It becomes impossible to exclude them from single-sex schools and clubs. It can affect whether or not a woman has a pay discrimination claim at work. It makes it more difficult to provide single-sex intimate care for disabled women.

All trans people have the same robust legal protections against discrimination under the Equality Act as other groups at risk of discrimination. But at the moment, someone needs a medical diagnosis of gender dysphoria to acquire the rights that come with changing your legal sex. The Scottish bill removes that safeguard, opening it up to any man who might want them and is happy to exploit this reform.

On the basis of Scottish government predictions of the increase in annual applications, MBM Policy estimates this would mean about 6,000 of Scotland’s 25,000 trans population will eventually change their sex; on the basis of UK government predictions, 11,000. No one really knows, but it will be significantly more than the 600 or so Scottish certificates issued at present. This will probably make service providers more reluctant to provide genuinely single-sex services; it is a criminal offence to inadvertently reveal someone has changed their legal sex, so the more common this is, the more they will lean towards treating all males who identify as female as though they have.

It further opens the door to dangerous men qualifying for enhanced rights of access: there are already violent male sex offenders locked up with vulnerable women in prisons in Scotland. It harms the privacy and dignity of women and girls who want to be able to undress, or receive medical care, without male strangers present. It shifts social norms in a way that makes it more difficult for women to challenge men who may want to commit voyeurism and exposure: in California, where these reforms have already happened, a woman who complained about someone who it later emerged was a convicted sex offender for exposing himself in a female-only spa had her concerns dismissed as transphobic across the media.

These issues were not properly explored by Holyrood. Sturgeon dismissed women’s concerns as invalid and artificial. Despite poll after poll highlighting the unpopularity of the reforms, the evidence sessions were skewed against their opponents. The SNP voted down amendments to protect women in prison, to allow single-sex hospital wards and female-only intimate care and to ban sex offenders from changing their legal sex. Concerns of the UN special rapporteur on violence against women and girls and the Equality and Human Rights Commission went ignored, including that the bill would have unaddressed cross-border impacts.

If Scotland were independent, that would be the end of it. But section 35 of the Scotland Act gives the Scottish secretary, Alister Jack, the power to block any Holyrood bill that modifies “the law as it applies to reserved matters” that he has “reasonable grounds” to believe would adversely affect laws that apply to the whole of the UK. This power has never been used, so the nature of this test has never been clarified by the courts. But some constitutional experts, including the former supreme court judge Lord Hope, believe that the Scottish government has a weak challenge in this instance because its reforms modify a law that affects the operation of the UK-wide Equality Act and Jack has set out good reasons for why it is reasonable to believe there are adverse impacts.

The culture wars frame suits Sturgeon because it positions her as defender of minorities against a dastardly Tory government. But it doesn’t fit the facts. To lazily adopt it – as many of the government’s opponents have done – is to subsume a delicate rights conflict into a blunt political attack. If anyone is guilty of waging culture wars, it’s the politicians misleading the public about the effects of their reforms who, a few years ago, were rightly quick to call rightwingers out for spreading misinformation about how much leaving the EU would free up funds to spend on the NHS.

The rights at stake – protections for women and girls that remain a Westminster matter – mean the government was correct to trigger section 35. It remains to be seen if the courts find it meets the legal test. Either way, it has bought a pause that the government could use to resolve many of the issues by amending the Equality Act to make clear its definition of sex is biological sex. That is a compromise that would be the antithesis of a culture war.

• Sonia Sodha is an Observer columnist

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Sonia Sodha

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