I don't require government-issued paperwork to prove that I am trans
Alister Jack was entirely right to make a ‘Section 35’ order to block Nicola Sturgeon’s controversial Gender Recognition Reform Bill from proceeding to Royal Assent. As Secretary of State for Scotland, Jack invited the Scottish Government to bring an amended Bill back for reconsideration at Holyrood. He added, “I hope we can work together to find a constructive way forward that both respects devolution and the operation of UK Parliament legislation.”
The SNP will no doubt be outraged, but Sturgeon’s Bill would have impacted on reserved matters — including the UK-wide Equality Act and the administration of UK passports. From a purely legal aspect, that makes the bill ultra vires. It is on those grounds alone that Jack will have acted. Should the Scottish Government choose to waste taxpayers’ money on another judicial review there will be further discussion in the courts, but this is a debate in which the legal arguments are eclipsed by emotion and politics.
Like what you’re reading? Get the free UnHerd daily email
Already registered? Sign in
The debate in Scotland was high on emotion. Trans people, we were told, are subjected to a demeaning and humiliating process just to be ourselves. That is nonsense, and suggests to me that those making those arguments do not understand the purpose of a Gender Recognition Certificate.
A GRC is not some sort of transgender licence, nor a certificate to prove that someone is transgender. I have no GRC, and I have no intention of getting one: I have no need to falsify a historical document of my birth in order to live in the present. What matters in real life are relationships — how we see ourselves and how other people see us — not government-issued paperwork.
Rather, a GRC serves a single purpose: to change the sex recorded on that birth certificate. Since I cannot remember the last time anyone asked me to produce that piece of paper, it really has no impact on my life. But it would matter very much if I were ever asked to prove my sex. My birth certificate would confirm straight away that I am male.
However, if I were to acquire a GRC then all my documents would indicate that I am female. Service providers would have no way of proving otherwise, unless I came clean. So, while the Equality Act might allow them to offer single-sex services, they have no way of distinguishing — on paper at least — between women and transwomen with a GRC.
Before Jack’s announcement, there had been talk of simply refusing to recognise Scottish GRCs outside Scotland. But that would simply not be possible. It’s not the GRC that matters but the birth certificate that has been altered as a result. Services in England, Wales and Northern Ireland can hardly refuse to accept birth certificates issued in Scotland.
The Scottish Bill might not have created the problem, which goes back to the original Gender Recognition Act of 2004, but it magnifies it because self-declaration opens up the process to a much wider group of people, and to 16- and 17-year olds. Children born in Scotland but resident in another part of the UK could have acquired a GRC and then demanded to be enrolled in schools designated for the opposite sex.
The impact of the Section 35 order will reverberate through Scottish politics, and the politics of the United Kingdom as a whole. The constitutional question remains unresolved, and this might seem like a golden opportunity for supporters of independence to mobilise the people of Scotland. How dare the Westminster government use its powers to block a clear resolution of the Scottish Parliament?
But polling suggests that the wider population of Scotland is not keen on self-ID. Research by YouGov for the Times found that two-thirds of Scottish voters opposed Sturgeon’s plans. Ultimately, the court that really matters for the Union is the court of public opinion. If the public decides that, actually, they are relieved to have a UK government that can — and will — step in to protect the rights of women and uphold the safeguarding of children, then the independence debate may finally be resolved. Just not in the way that the SNP hoped.