Mick Hartley

Scotland is leading the way in promoting trans rights – again, and long after the debate was assumed to be over. It pays lip service to the Supreme Court ruling that sex means real biological sex, while doing its best to thwart it in practice. Not unlike Starmer’s Labour government, in fact.

Alex Massie in the Times:

Once upon a time and not so very long ago, Sir Keir Starmer viewed Scotland as a place of cautionary tales. Sure, he had once been an unthinking supporter of allowing anyone to identify as whatever sex they might choose but Nicola Sturgeon’s experience had persuaded him this might be more trouble than it could possibly be worth.

“I think that if we reflect on what’s happened in Scotland,” he said in the summer of 2023, “the lesson I take is that if you’re going to make reforms, you have to carry the public with you.” Consequently, Labour consigned its own enthusiasm for self-ID to the memory hole of politically disadvantageous policy. Only unkind people would insist on remembering that Labour ever believed any of the things it really did believe.

But the issue will not go away. Indeed, it is returning to court right now. For Women Scotland, the campaign group whose efforts established that the law is, and always was, that the meaning of sex as it pertains to the Equality Act only makes sense if defined in strictly biological terms, are at it again. For the third time, FWS is taking the Scottish government to court. The Scottish government said it “accepts” and “respects” the Supreme Court’s judgment before stonewalling attempts to actually implement it. As a result, FWS is demanding that the government in Edinburgh actually enforce the law, especially with regard to prisons where, remarkably, male inmates are still routinely housed in the female prison estate.

In response, the SNP government argues that strict “segregation” of prisoners by biological — and legal — sex risks leaving trans inmates “in an intermediate zone of neither one sex nor the other”. This is physically impossible and, quite possibly, legally absurd. Nevertheless, this is the rabbit hole down which the authorities have chosen to scurry.

John Swinney’s ministers say insisting that single-sex prisons should be precisely that would leave the government in breach of the European Convention on Human Rights. This is the ditch in which the Scottish government is preparing its last stand. It wishes the Court of Session to issue a “declaration of incompatibility” which, if granted, would complicate and quite possibly compromise the Supreme Court’s ruling.

This is not just a Scottish problem. Starmer’s government also “respects” Lord Reed’s ruling in public while privately arguing against it in court. Channelling Augustine, both governments say “Lord, allow us to follow the law, but not yet”. Bridget Phillipson, the minister for women and equalities, still refuses to publish new guidance from the Equalities and Human Rights Commission. Bravely, she seems to think no one is paying attention to this.

Prisons might seem an unlikely arena for a fight of this sort. But that was precisely the point. Trans activists were commendably open about this. In 2018 James Morton, then head of the Scottish Trans Alliance, boasted that prisons were a gateway for other areas of public policy: “We strategised that by working intensively with the Scottish Prison Service to support them to include women as women on a self-declaration basis within very challenging circumstances, we would be able to ensure that all other public services should be able to do likewise.” Prisons today; schools and hospitals and everywhere else tomorrow.

It didn’t work the first time round, but they clearly haven’t given up. Maybe if we keep quiet about it, they thought. But For Women Scotland saw what was happening.

Even the keenest advocates of self-ID understand that the public will look askance at those who claim male rapists become women by declaring themselves such. Yet even now they cannot bring themselves to acknowledge that while self-ID may well be absurd if accepted on a universal and unilateral basis it is unavoidably a nonsense if it is not universal.

This is something for a prime minister who once suggested it was “not right” to say only women can have cervixes to ponder too. And so is this question: Is Scotland still a cautionary tale or is it now an example to be followed?

Over to you, Bridget Phillipson. And Keir Starmer.