Joanna Cherry: Gender bill might have faced legal challenge post-indy

That said, to describe the use of the Section 35 power to block the bill as an attack on devolution doesn’t really make sense. It is of the essence of devolution that the devolved Parliament is subservient to the UK Parliament that’s why we as nationalists want independence.

In an independent Scotland the passing of the bill by a parliamentary majority would not necessarily have guaranteed that it would have become law without further challenge.

If we were an independent country with a written constitution, I predict this bill would be facing a legal challenge based on the concerns about its impact on equality law and human rights.

If you cast your mind back to the summer of 2014, you will recall that the transitional constitution (published in a white paper with a foreword by Nicola Sturgeon) enshrined the protected characteristics of the Equality Act and the rights protected by the European Convention on Human Rights (ECHR) in Scotland’s new constitution. 

Those protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Not in a hierarchy but all deserving of equal treatment.

So, let’s have a little bit less hysteria and more cool heads. The women, the old ladies, people with disabilities and those who are same-sex attracted who have valid concerns about the impacts of this bill are as deserving of having their voices heard as the trans people whom it may benefit. They don’t deserve to have their voices drowned out by this issue being turned into a constitutional football.

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I am not opposed to simplification of the process of gender recognition for trans people, as was promised in the SNP manifesto, but simplification should not mean eliminating safeguards. The First Minister has said repeatedly the bill gives no new rights to trans people. That is correct. You will search in vain for the word “trans’ in the bill. It’s not there.

Instead, the bill creates a new right for anyone to self-identify as the opposite sex with next to no meaningful safeguards. It’s pretty obvious that giving any man the right to be able to self-identify as a woman will impact on the rights of women to safety, dignity and privacy. And, for lesbians, the fact that any man can say he is a woman poses a threat to our right to be same-sex attracted.

Let’s just remind ourselves of the sort of safeguards to the bill that were voted down in the Scottish Parliament. An amendment to prevent known sex offenders from obtaining a gender recognition certificate (GRC); an amendment to prevent those awaiting trial on sex offences from applying for a GRC (which would have protected rape victims from the humiliation of having to use female pronouns to refer to their attacker in court); amendments to protect vulnerable women in prison; amendments to ensure those receiving intimate care could elect to receive it only from members of their same sex; amendments to allow the continuation of single-sex wards in health care settings.

Are we really saying this is acceptable and justifiable?

In my work as chair of the Joint Committee on Human Rights (JCHR) at Westminster, I carefully scrutinise the human rights implications of bills that come before the UK Parliament. We don’t just look at the rights of those whom the bill is intended to benefit (with the Tories that’s generally their pals in big business or the privileged) but we also look at the impacts on the rights of others, whether intentional or unintentional.

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When I look at the GRR Bill, I see that it might assist trans people’s right to live in safety and with dignity, privacy and respect for their private life and beliefs, (Articles 2, 3 and 8, 9 and 10 of the ECHR) but I also see it could impact on the rights of women and LGB people to do the same.

Sometimes rights conflict and when that happens accommodations between conflicting rights must be found. I don’t think there was a proper analysis of the full rights implications of the bill during the parliamentary process.

Likewise, when it comes to the adverse effect of the legislation on the Equality Act, MSPs were warned about this by the Equality and Human Rights Commission and policy analysts such as Murray, Blackburn Mackenzie but these warnings were not subjected to an appropriately rigorous analysis.

And to those who say that the GRR Bill explicitly states that it does not affect the Equality Act, I say that is a very naive understanding of how legislation works. You could pass a bill saying the sky was green but that wouldn’t change the fact that it is blue.

A lot is also made of the fact that the bill has been subjected to six years of consultation and scrutiny but as National columnist Shona Craven has pointed out, we should not confuse the length of the process with the thoroughness.

It seems likely now that these rights issues will be revisited in court. If the Scottish Government proceeds with its judicial review of the Section 35 order, strictly speaking the court should confine itself to a consideration of whether the order was lawfully and reasonably invoked but I cannot see how it can do that without considering whether the Equality Act is indeed adversely impacted.

Separately, I would anticipate further legal challenges to the bill on the grounds that it conflicts with the human rights of women and LGB people. The Scotland Act provides that the Scottish Parliament cannot legislate in a way that is incompatible with the rights set out in the ECHR.

We all know the Tories aren’t too pushed about human rights and anyway, Section 35 does not allow the bill to be vetoed based on an adverse impact on ECHR rights. However, others care about the universality of human rights and women and LGB people now have some powerful and brave grassroots champions, notwithstanding the attacks to which they have been subjected.

And that brings me to my final point. The behaviour of some MPs in the House of Commons Chamber during the debate on Tuesday was unedifying.

A male Labour MP was allowed to launch a screaming tirade on a female Tory MP who had described her fear and discomfort at encountering what she perceived as a man dressed as a woman in a women’s toilets, with only the mildest censure from the chair.

The Labour MP Rosie Duffield, a survivor of domestic abuse, was howled down by mainly male voices. It was just a small taste of what I and others have faced for raising concerns about the wider implications of self-identification and it was one of the reasons why I absented myself from the chamber during the debate.

Bullying is never OK. It is not acceptable for anyone to bully women in their place of work or anywhere else just because they disagree with them. It’s particularly horrible to see men do it to women. Anyone who cannot acknowledge this to be the case shouldn’t be in public life.

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The way in which some people have been allowed to conduct themselves during this debate is a disgrace to Scottish and British politics. When some of the most vocal proponents of legislation threaten women who express concern about its impacts with violence – including sexual violence – and politicians supporting the legislation look the other way, something is very wrong.

For daring to raise legitimate concerns about the impact of this legislation on women, girls and LGB people I have faced rape threats, death threats, a toxic working environment and the threat of the loss of my livelihood.

My experience is typical of women across the UK in politics, the health service, education, and other sectors. If this is what I face as a woman in the privileged position of a Member of Parliament, then what hope is there for any working-class or vulnerable woman who wants to raise concerns about the impact of this bill on her dignity, safety, or privacy?

Scotland can do better than this.