Meeting of the Parliament 26 March 2024
The Cabinet Secretary for Social Justice has described the amendment bill as simply a small technical fix to the statute book, but I completely disagree with that analysis. The bill is the Scottish Government’s very public acceptance, however grudgingly given, that its policy that trans women are women has been thoroughly defeated in Scotland’s highest court. Through a late change in the wording of the law and without any equality impact assessment, the Gender Representation on Public Boards (Scotland) Act 2018 defined women entirely on the basis of self-identification. It was, we were assured, a one-time-only redefinition that would have no meaning outside the act.
However, as women’s rights campaigners predicted, that new definition was soon used as proof that self-ID was now the law in Scotland and could not be argued against. For Women Scotland, some of whom are with us in the public gallery today, brought a judicial review on that new definition of women, and the inner house of the Court of Session ruled on 18 February 2022 that it was unlawful. The short bill that we are discussing today removes that definition from the legislation. Whether the new definition will have to be changed again—in support of For Women Scotland’s belief, and mine, that, for the purposes of the Equality Act 2010, women should be defined entirely on the basis of biological sex—will now be decided at the Supreme Court.
What is already clear today is that the Scottish Government’s policy that all men who identify as women should be treated as women is, in fact, unlawful. In fact, self-ID has no legal standing. Trans women are not women under Scots law, so it is wholly wrong for any organisation or MSP to still rely on a definition that has now been ruled unlawful and, as can be seen today, has been accepted as such by the Scottish Government. At the very least, the Scottish Government should make sure that it does not fund organisations that are advising it incorrectly and that all processes and policies are being updated to ensure that this does not happen again. I would welcome a statement from the Government on that, especially as the Government is saying that it will introduce a bill on conversion therapy this year.
I am also wondering, as others in the chamber might be, when the Scottish Government will advise its MSPs what the law is saying in this regard. This debacle, after all, was the start of a whole suite of legislation, together with the Hate Crime and Public Order (Scotland) Act 2021 and the Gender Recognition Reform (Scotland) Bill, that is based, as far as I can see, on the demands of lobby groups that the Government is funding. It is entirely symptomatic of the failings of a Government that is pursuing legislation costing hundreds of thousands of pounds of public money that does not reflect the view of the public. I am sure that that money would be much better spent elsewhere. All of that has undermined trust—fatally, I think—in the Scottish Government. Most disturbingly for me as an independence supporter, it has also undermined trust in the Scottish Parliament as an institution.