January 22, 2020   6 mins

The butterfly effect describes how the flapping of tiny wings in China may cause a hurricane in the Caribbean a couple of weeks later. The hurricane tearing through social policy in Scotland at the moment also had small beginnings: not in China 14 days ago but in Yogyakarta, Indonesia 14 years ago. This, however, was no accident of chaos — it was deliberate and planned.

Future historians may marvel how that meeting of human rights groups in Yogyakarta established gender identity as an innate human quality and decided that it must be protected in law. At the time, in 2006, political commentators at home were more concerned with the so-called Granita Pact, and whether Tony Blair would ever resign in Gordon Brown’s favour. But Yogyakarta triggered a chain of events that would eventually challenge the use of biological sex to divide humanity. While the definition of gender identity was vague — how can you define what is in essence a feeling in our heads? — the vision was grand.

Fast forwards to 2015 and attention in the UK was turning towards our membership of the EU. However, it was the Council of Europe — the organisation that we are not leaving — that drove the agenda in Europe when it passed Resolution 2048 and called on all member states to enshrine gender identity in national law, and thereby displace biological sex. Without the democratic scrutiny that surrounded prime ministerial succession and Brexit, Resolution 2048 shook the very foundations of human society — what it means to be a man or a woman.

The impact on society is profound. At this very moment, Scotland is considering a change to the law that would allow people to change their legal sex without producing evidence of a psychological need. While they are not protecting gender identity — that would require a change to the Equality Act, which is not a devolved matter — it will have much the same effect.

“The Scottish Government seem bent on pushing badly written and poorly defined legislative change,” the Scottish campaigning group forwomen.scot tells me, “without due consideration for the potentially massive implications for the social and legal position of women in Scotland.”

Legislative change that has been planned in the dark. According to recent guidance for activists uncovered by the legal website Roll on Friday, secrecy is crucial: “Avoid excessive press coverage and exposure,” it urged. If society had been aware of the implications, those campaigners may not have been given such a free run as they lobbied governments to adopt Resolution 2048.

The tactics were highly effective. Immediately after the 2015 UK election, the House of Commons Women and Equalities Committee turned their attention to Transgender Equality. Following a consultation that provoked just 208 responses, the committee report recommended that the Government should introduce self-declaration of gender, and establish gender identity as a protected characteristic. In the ensuing Parliamentary debate the Yogyakarta principles were cited as some exotic sounding authority.

Elsewhere in Europe, the tide kept advancing. As Malta and then Ireland both passed laws based on Resolution 2048, liberals and progressives were kept on board or — more likely — in the dark. Meanwhile, the occasional dissenter could be denounced as a hateful bigot and probably a Nazi.

Government consultations were announced at Westminster and separately in Scotland, where gender recognition is a devolved matter. Few people cared apart from transgender activists. Small groups of women did meet to share their concerns, but their gatherings provoked outrageous responses from supposed progressives.

Politics changed at Speakers’ Corner in London on 13 September 2017 when 26-year old Tara Wolf — a self-declared trans woman — assaulted 60-year old Maria Maclachlan before one of those meetings (Wolf was fined £150 by magistrates). A group of female trade unionists decided enough was enough, and two months later their new group, Woman’s Place UK, held its first meeting in Cambridge. They drew in big name speakers including Linda Bellos and Beatrix Campbell, and the tide began to turn. Within two years they filled the QE II Conference Centre in Westminster.

In an increasingly febrile environment, governments dithered. The consultations were delayed creating a political vacuum that exacerbated the situation: hope and good will were replaced by fear and anger; compromise was out, confrontation was in.

Scotland consulted first. By 1 March 2018, 15,697 responses had been submitted — rather more than 208. Westminster began its consultation four months later. When it closed on 22 October that year, more than 100,000 responses filled the electronic postbag, according to unofficial reports. The official figure is still not known because over a year later the findings of the Westminster consultation remain unpublished. Priorities have moved on, and it seems unlikely that Boris Johnson’s government will want to devote any time to gender recognition legislation. If it weren’t for Scotland, that may have been the end of it.

Scotland continued to dither. They neither threw out gender recognition nor moved forwards with confidence. They drafted a bill but started consulting a second time, a process that is currently underway. It closes on 17 March this year. The outcome will be felt south of the border and beyond our shores as the world watches Scotland deal with the hurricane.

The political divisions are profound. On one side are the arguments that we trans people have a difficult time, and simplifying gender recognition makes our lives a little easier. But this is about more than trans individuals, it is about society.

Allowing male people to declare themselves female for reasons known only to themselves is open to abuse, and any law that relies on well-meaning people declaring that (abusive) men wouldn’t do that, would they? is questionable at best.

Women’s spaces are not protected because all men present a hazard, but a few do. In the same way, we don’t lock our doors at night because all passers-by are a hazard. But in both cases, some people will abuse trust and women need to take precautions just like householders need to take precautions.

The inconvenient truth is that transwomen are male, and — as a group — we present the same hazard that men present. Women can no more differentiate nice trans from nasty trans than they can distinguish nice men from nasty men. Allowing us to declare ourselves to be trans and then immediately self-identify into women’s spaces makes the boundaries meaningless. It is a safeguarding nightmare.

This matters for Scotland. Gender recognition is a devolved matter and it is for Scotland to decide how to progress, but if they are wise they will consider what is happening across the world. In Canada, for example, where the transwoman Jessica Yaniv is making a mockery of a 2016 amendment to the British Columbia Human Rights Code that protects self-declared gender identity. Yaniv took action (later dismissed) against female beauticians for refusing to wax what would in more normal times have been considered to be male genitals.

While the Scottish government may claim in their consultation (Para 3.20) that they do “not wish trans people to go through procedures which are demeaning, intrusive, distressing and stressful”, it’s a matter of debate whether being asked to provide medical evidence of a need to change your legal sex is demeaning. I don’t think it is, though like many trans people I have never felt the need to change the sex on my birth certificate in any case. We shouldn’t need to lie about the past in order to live in the present.

But this matters for more than Scotland. Fourteen years after Yogyakarta the policy juggernaut has paused in the UK, but it has not gone away. The pressure from transgender activists is incessant.

While the Westminster Government may be less sympathetic to reform, how long would someone need to be resident in Scotland in order to qualify in Scotland? England and Wales would no doubt recognise Scottish paperwork — even ‘Gretna Green’ paperwork — as equivalent to our own, and come under pressure to mirror Scottish legislation. The juggernaut would spring back to life, putting three vulnerable groups at risk.

  • Women, who lose control of their own boundaries. If any male person can declare themselves to be a female person, those boundaries become meaningless. While few men would call themselves women just to access women’s spaces, those that would are the reason those boundaries are needed.
  • Children, who are told that they can choose their gender and — if they believe their body to be wrong — may end up railroaded into medical and surgical interventions. Children young enough to believe in the tooth fairy are not old enough to be put on a path that can lead to infertility, loss of sexual function, and medication for life.
  • Trans people who risk losing the goodwill we rely on. Attempts to change the law to our advantage by policing the words — and even the thoughts — of others will not end well for us. If the Scottish Government doesn’t see the problem, others will and those people may find popular support and rebuild society in a way that is genuinely unkind to us.

Consultations are not referenda. They are opportunities for people to pass on their wisdom and experience to inform decisions made by policy makers.

There is a debate, even among trans people. While Owl Fisher, for example, has spoken about a moral panic over transwomen using women-only services, Kristina Harrison empathised with women when she wrote: “Perhaps you can begin to understand the concerns of many women when it is increasingly being asserted in practice, if not fully in law, that simply identifying as a woman means being able to access women’s and girls’ private, formerly single-sex, spaces — toilets, rape-crisis centres and so on.”

Decisions need to take place in openness and transparency, and following widespread consultation. We can all have an opinion on something as fundamental as what it means to be a man or a woman. Is it determined by our sex, or is it a feeling in our heads? The consultation is open until 17 March, and it’s vital that we all have our say to ensure Scotland gets this right. If Scotland revises the law to allow anyone to change their legal sex, just because they want to, women, children and trans people all become hostages to fortune.

Meanwhile, 14 years after Yogyakarta, policymakers across the world will be watching Scotland weather the storm.

Debbie Hayton is a teacher and a transgender campaigner.