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Epiphanies 2023: Scottish Gender Recognition Act and UK Block

edited January 7 in Limbo
This discussion was created from comments split from: Attorney General endorses transphobia.
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  • No surprise, alas - but there will be a legal challenge, it seems.
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    Considering the amount of time the Scottish government and Parliament spent on making sure the gender recognition bill was compatible with other legislation, in particular the Equalities Act, the UK government doesn't seem to have a leg to stand on. It's just an exercise in playing to the bigots they rely on for votes, at the expense of trans people who will now have to wait longer until their rights are recognised.
  • Considering the amount of time the Scottish government and Parliament spent on making sure the gender recognition bill was compatible with other legislation, in particular the Equalities Act, the UK government doesn't seem to have a leg to stand on. It's just an exercise in playing to the bigots they rely on for votes, at the expense of trans people who will now have to wait longer until their rights are recognised.

    Playing to the bigots they rely on for votes seems to be the only thing the tories care about these days. Time for them to go into Outer Darkness, or at the very least durance vile...
  • KarlLBKarlLB Shipmate
    Considering the amount of time the Scottish government and Parliament spent on making sure the gender recognition bill was compatible with other legislation, in particular the Equalities Act, the UK government doesn't seem to have a leg to stand on. It's just an exercise in playing to the bigots they rely on for votes, at the expense of trans people who will now have to wait longer until their rights are recognised.

    Playing to the bigots they rely on for votes seems to be the only thing the tories care about these days. Time for them to go into Outer Darkness, or at the very least durance vile...

    Starmer's not much better, pandering to them.
  • I don't understand 'TERF Island'
  • DoublethinkDoublethink Admin, 8th Day Host
    Trans Exclusionary Radical Feminist
  • Trans Exclusionary Radical Feminist

    Yes, but are they why Westminster wants to use Section 35? Which 'Island'?
  • KarlLBKarlLB Shipmate
    Merry Vole wrote: »
    Trans Exclusionary Radical Feminist

    Yes, but are they why Westminster wants to use Section 35? Which 'Island'?

    Britain.

    The TERF narrative is seen as mainstream in the UK, which legitimises right-wing transphobia as well.
  • The Tories want a culture war over transgender, and they think that by blocking the Scottish measure, they will be popular. It's a distraction from strikes/poverty/NHS, etc.
  • Thanks.
    As no 'medical diagnosis' of gender dysphoria is required in the Scottish Bill does being trans become less of a 'thing ' as gender self-identity is the 'thing'?

    (Please note, I am only trying to understand this issue)
  • LouiseLouise Epiphanies Host
    edited January 2023
    I don't like fixating on TERFs as they're really just a fig-leaf for right-wing/ far-right attacks on trans people which do the usual frightening scapegoating and monstering of a minority. There have always been ostensibly left/liberal people who sided with the very worst of right wing attacks on minorities and made up shameful reasons why they thought this was 'progressive' and justified.

    The recent census showed that there are about as many trans people in England and Wales*, as there are Jewish people or Buddhists or GRT people - about 0.5% of the population if I recall correctly. When the most powerful people come for a powerless minority like that, the stakes are very high. The minority is at risk, along with the nature of our democracy and rule of law because hate-groups stop at nothing and quickly jettison all their other principles to get at the minority they hate.

    We're seeing that in Scotland right now as people who are driven by hatred of trans folk jettison every other principle they have to stand with Sunak against a cross-party vote of the Scottish Parliament supported by Lib Dems, Labour, SNP, Greens and even two Tories.

    An honourable mention to the Scottish Lib Dems here for praise, as along with the Greens they voted 100% for the gender recognition act and are so far standing by it. Scottish Labour voted overwhelmingly for it too (I think with about two rebels) but because of Keir Starmer some really shocking selling-out has just cropped up.

    It's important to understand that this crosses lines on Independence and was overwhelmingly backed by all parties pro and anti Indy except the Conservatives who are part of the international right and far-right attack on trans people (who are scapegoated by them like other vulnerable groups).

    I don't think you can any longer say you are left wing or Liberal and join with the Conservatives to attack trans people without being open to charges of being at best a 'useful idiot' and at worst as bad as everyone else on the far right who uses the 'attack on minority' group tactic.


    *we're still waiting for up to date Scottish figures
  • LouiseLouise Epiphanies Host
    edited January 2023
    Merry Vole wrote: »
    Thanks.
    As no 'medical diagnosis' of gender dysphoria is required in the Scottish Bill does being trans become less of a 'thing ' as gender self-identity is the 'thing'?

    (Please note, I am only trying to understand this issue)

    I cross posted with you Merry Vole and will ask about and see if I can find a good resource for helping.

    [Edited to add I've added Gwai's link to our pinned resources thread - and there's more where that came from]

    Cheers
    L
  • GwaiGwai Epiphanies Host
    @Merry Vole Legally? I hope so. I haven't read this book, but it sounds interesting and relevant. (I might read it in the future if I can get to it. I'm noting it.)

    Community-wise? No. Being trans will always matter. If you are assigned male at birth and are female, you would then self identify as female. But that would be because you are trans.

    Does that make sense?

    Also a link that might be helpful: https://www.scottishtrans.org/our-work/gender-recognition-act-reform-2022/gra-in-the-world/
  • There are some people who like to argue that gender shouldn't matter, and that everyone should be pansexual, and so on. They are entitled to their view, but it doesn't represent the way that the majority of people currently view gender.
  • KarlLBKarlLB Shipmate
    edited January 2023
    There are some people who like to argue that gender shouldn't matter, and that everyone should be pansexual, and so on. They are entitled to their view, but it doesn't represent the way that the majority of people currently view gender.

    Is anyone arguing that everyone should be pansexual?

    And if they are, what is their relevance to the question at hand?
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    It's not relevant, because the question in hand relates to gender and not sexual attraction.
  • The issue with the UK government's intervention is not to do with the subject matter of the bill, not really. It is to do with the fact that they are attacking Scottish democracy. They could have objected in other ways - they could for instance have sent the whole thing to the Supreme Court, thus depoliticizing the issue, (and this is where it is likely to end up now anyway) but instead they decided to make the decision themselves. It is this attack on democracy that was roundly condemned in the Scottish Parliament by all parties except, for the most part, the Tories.
  • Thank you @Louise and @Gwai
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    Cathscats wrote: »
    The issue with the UK government's intervention is not to do with the subject matter of the bill, not really. It is to do with the fact that they are attacking Scottish democracy.
    When the reason given to the Westminster Parliament are so spurious (how could this possibly impact equal pay?) it looks very much like it's unrelated to gender recognition.
  • Cathscats wrote: »
    The issue with the UK government's intervention is not to do with the subject matter of the bill, not really. It is to do with the fact that they are attacking Scottish democracy.

    I think this is the effect, but the aim is to stoke up the culture war.
  • Cathscats wrote: »
    The issue with the UK government's intervention is not to do with the subject matter of the bill, not really. It is to do with the fact that they are attacking Scottish democracy.

    I think this is the effect, but the aim is to stoke up the culture war.

    I'm not sure it's even that, it's primarily posturing for the benefit of tory backbenchers.
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    For the UK government there are multiple benefits - the culture war which they seem to think is a vote winner, and also is posturing to the backbench (both on culture wars, and also on the Union). It also distracts from other issues, the economy and the state of the NHS. They clearly don't care who gets hurt as they play politics.
  • LouiseLouise Epiphanies Host
    edited January 2023
    This piece is by trans journalist Gemma Stone

    https://screenshot-media.com/politics/lgbtqi-rights/gender-recognition-reform-bill/
    Hate crimes against LGBTQIA+ people are still rising consistently with each passing year, sometimes by upwards of 80 per cent. The media is still pumping out thousands of fear-mongering articles and commentary pieces filled with misinformation. And the government is still obsessed with pandering to those afraid of what’s written on less than 1 per cent of the population’s birth certificates.

    And all this is for a tiny reform that was seen by even someone as right wing as Theresa May as uncontroversial almost a decade ago.

    Here's a bit of personal oral history from Sarah Brown who was on an advisory group for Stonewall from the UK trans community.
    https://thegoatery.dyndns.org/display/8a89e8f8-1763-c61d-0d52-67a479400051
    she [Theresa May] wanted something from our list that was quick, easy, and uncontroversial. Obviously we were disappointed, but she was presented with bringing Britain’s antiquated Gender Recognition Act up to date, and in line with other European countries, as something simple. We honestly thought it was. It’s an administrative change of very little significant consequence, and actually no significance at all outside the trans community.

    And it would have been simple, had an eclectic collection of unpleasant, obsessive arseholes with privileged access to the UK press not decided to start a culture war over trans people at that exact moment. A culture war which, at least in England, they basically won. In part, this war was why I emigrated to Portugal.

    I've said before that one of the reasons I've been so active about this is that I watched that culture war start up in real time under my nose and I was just shocked by how quick and easy it was for very powerful people with pulpits in the media to scapegoat trans folk. If I hadn't seen that with my own eyes, I might easily have been taken in by it too as it spread to the kind of sources I would have thought were reputable and I could have unknowingly been parroting that bigotry to loved ones who weren't out about not being cis.

    But just think about this, what's been put forward is something so anodyne it was originally thought uncontroversial by Theresa May... that tells you how far controversy has been deliberately manipulated and manufactured

  • Somewhat surprising given the source, but this is a summary of the Government's arguments and why they hold very little water:

    https://threadreaderapp.com/thread/1615407126179880960.html
  • Somewhat surprising given the source, but this is a summary of the Government's arguments and why they hold very little water:

    https://threadreaderapp.com/thread/1615407126179880960.html

    Yes, fairly straightforward. The govt's points are absurd. As Falconer says, the exemptions for organizations will still apply. And there will be a few more trans people. However, Falconer neglects the culture war aspect, and of course, the attempt to sabotage the Scottish govt.
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    The culture war and sabotage of Scottish democracy may be parts of the government reasoning, but I would hope aren't going to be part of their legal case when it gets to the courts.
  • ArethosemyfeetArethosemyfeet Shipmate
    edited January 2023
    What proportion of Scottish parents and grandparents would be entirely happy for their children and grandchildren to make a choice of gender at 16?

    It's not a choice. That's why it's a gender recognition certificate.

    If my daughter turns out to in fact be my son then I would want them to have the full legal protection of that fact available as soon as possible.

    Nobody wakes up one morning age 16 and suddenly decides they want a GRC. This will, in pretty well every case, be the culmination of years of consideration.
  • Alan29Alan29 Shipmate
    The culture war and sabotage of Scottish democracy may be parts of the government reasoning, but I would hope aren't going to be part of their legal case when it gets to the courts.

    It looks as though a legal challenge would fail.
    https://www.bbc.co.uk/news/uk-scotland-scotland-politics-64315517

    Maybe the SNP have different legal advice - though it didn't go well the last time they took the UK government to the High Court. I do hope that the SNP aren't using a disadvantaged minority as a stick to beat Westminster with.
  • KarlLBKarlLB Shipmate
    What proportion of Scottish parents and grandparents would be entirely happy for their children and grandchildren to make a choice of gender at 16?

    It's not a choice. That's why it's a gender recognition certificate.

    If my daughter turns out to in fact be my son then I would want them to have the full legal protection of that fact available as soon as possible.

    Nobody wakes up one morning age 16 and suddenly decides they want a GRC. This will, in pretty well every case, be the culmination of years of consideration.

    Indeed. I'd go as far as to say that there's a danger that not allowing 16 year olds to apply for a GRC risks supporting denialism in non-affirming parents.
  • @Arethosemyfeet , where is your quote from? (couple of posts up thread)
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    It's from this post in Hell
  • LouiseLouise Epiphanies Host
    edited January 2023
    Can I reiterate that this act has been six years in the making with cross party support - Scottish Labour, Scottish Greens and Scottish Lib Dems and wide support from Scottish civil society groups such as Amnesty and the Scottish TUC. The impetus for this kind of reform itself came from the LGBT community as I've shown above.

    But if you're in any doubt about where the Scottish LGBT community stands, this is Duncan Hothersall who helped set up helped to set up Pride Scotland and the Equality Network.

    https://www.thecourier.co.uk/fp/opinion/4065361/duncan-hothersall-gender-reform-trans-section-28-keep-the-clause/

    He's a Scottish Labour activist who completely opposes the SNP on constitutional matters. Please read what he has to say

    Similarly you'll note the Scottish Lib Dems not only voted 100% for this but also fought for it at Westminster with Christine Jardine pressing Alister Jack hard on this.

    Finally people don't 'make a choice of gender at sixteen' they know what gender they are - the same way as anybody else does, much the same way that people know their sexual orientation. They simply decide to come out of the closet about it and to begin affirming the gender they are. The only choice is: are you going to be out about it and face the prejudice or are you going to stay closeted and feel you have to pretend to be something you're not, with all the harm and misery we know that causes.

    People who love their children and grandchildren can do a great deal of good by educating themselves about gender from LGBT+ sources which know what they're talking about, and by speaking out against the current moral panic against trans people and especially the panic about trans young people, because that's how your children, grandchildren and friends will know you're a safe person to come out to.
  • BoogieBoogie Heaven Host
    The culture war and sabotage of Scottish democracy may be parts of the government reasoning, but I would hope aren't going to be part of their legal case when it gets to the courts.

    This.

    I’m sure the Westminster govt are using it as a distraction from the many other messes they are in. A bit of moral panic and otherizing suits their agenda well.

  • Alan29Alan29 Shipmate
    Boogie wrote: »
    The culture war and sabotage of Scottish democracy may be parts of the government reasoning, but I would hope aren't going to be part of their legal case when it gets to the courts.

    This.

    I’m sure the Westminster govt are using it as a distraction from the many other messes they are in. A bit of moral panic and otherizing suits their agenda well.

    I will wait for the outcome of any Supreme Court judgement about whether Holyrood has acted outside its legal remit. Sturgeon has promised legal action, so that should clarify the situation.
  • DoublethinkDoublethink Admin, 8th Day Host
    edited January 2023
    The one part of the government’s position paper that is difficult to argue with, is that it is not really viable to have system where someone is held to legally be one gender in one part of the country and not in the other parts of the country simultaneously.

    (In an ideal world this would result in the same legislation being passed nationally, but that does then require legislation from the rest of the UK.)
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    It could be solved by simply accepting the right of other legislations to do things differently from the UK government. There are over 20 nations or regions which already issue gender recognition certificates based on self identification - are the UK government going to tell them that they need to adhere to the antiquated and abhorrent system in the UK or those citizens could be turned away at the airport for having a passport which records the "wrong" (according to the UK government) gender? Is the UK government an imperial power dictating to other nations what they should do?
  • DoublethinkDoublethink Admin, 8th Day Host
    Yeah but, that becomes the constitutional issue doesn’t it - we aren’t actually a federal union (which I think we should be). So legally, we would end up with that paradox if Westminster didn’t also pass legislation, and as I understand it, is the crux of the legal position. If Scotland passes a law, any law, which means some piece of UK law will not work properly without being modified - then that meets the conditions for the veto.
  • Alan29Alan29 Shipmate
    Yeah but, that becomes the constitutional issue doesn’t it - we aren’t actually a federal union (which I think we should be). So legally, we would end up with that paradox if Westminster didn’t also pass legislation, and as I understand it, is the crux of the legal position. If Scotland passes a law, any law, which means some piece of UK law will not work properly without being modified - then that meets the conditions for the veto.

    In one.
  • DoublethinkDoublethink Admin, 8th Day Host
    edited January 2023
    It could be solved by simply accepting the right of other legislations to do things differently from the UK government. There are over 20 nations or regions which already issue gender recognition certificates based on self identification - are the UK government going to tell them that they need to adhere to the antiquated and abhorrent system in the UK or those citizens could be turned away at the airport for having a passport which records the "wrong" (according to the UK government) gender? Is the UK government an imperial power dictating to other nations what they should do?

    It appears that in the case of, for example, marriage - the uk will recognise a status so long as it was legal in the country in which it occurred: https://raydensolicitors.co.uk/blog/are-marriages-abroad-recognised-in-the-uk/

    The difference is that the UK does not consider Scotland an external entity in that way.

    (ETA It looks as if the UK government is looking at refusing to recognise external self-ID though, https://www.theguardian.com/world/2023/jan/10/tories-review-lgbtq-gender-recognition-certificate-deal but at the moment people with more liberal regimes will have have their gender status accepted.)
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    Though the Scottish Government and Parliament has spent 6 years working on a bill to avoid any conflict with existing UK legislation (as, indeed, should be the case for any bill in any Parliament - the first thing you do is check what other bits of legislation could be in conflict and make sure that your bill doesn't conflict, either by changing your bill or if possible changing the existing legislation). The bill as passed by the Scottish Parliament was significantly watered down to avoid any potential conflict with any UK legislation. And, there was plenty of time during the passage of the bill for those who considered that there were conflicts to raise those concerns and table appropriate amendments (or, get their representatives to do so).
  • DoublethinkDoublethink Admin, 8th Day Host
    edited January 2023
    Is it not true there is a risk of folk ending with two legal genders at the same time ? (Because if not, then I think the legal challenge will have much more chance of succeeding.)
  • KarlLBKarlLB Shipmate
    Is it not true there is a risk of folk ending with two legal genders at the same time ? (Because if not, then I think the legal challenge will have much more chance of succeeding.)

    Don't think so - doesn't the GRC allow the changing of your birth certificate, which dictates your legal gender?
  • DoublethinkDoublethink Admin, 8th Day Host
    The UK gov is claiming the Scottish GRC is not automatically effective nationally, if they are lying they should lose the challenge.
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    Currently the Scottish GRC is functionally identical to GRCs issues in England, Wales and NI (and, indeed any other nation where it's possible to have actual gender recognised even if that's different to what was originally put on the birth certificate).

    The new bill that passed through the Scottish Parliament in December will not change the function of a GRC, and if that's not automatically effective nationally then no GRC issued in the UK since the legislation to recognise actual gender was introduced has been effective. It would mean that all the people who have gone through the bureaucracy and intrusive medical assessments to get a GRC have a worthless piece of paper.
  • The one part of the government’s position paper that is difficult to argue with, is that it is not really viable to have system where someone is held to legally be one gender in one part of the country and not in the other parts of the country simultaneously.

    Why is this actually not viable? The person's body is only in one part of the country at any one time.

    It's obviously a sucky state of affairs for a person to be recognized as, let's say, male, in Scotland, but treated as female in England, but is it really less viable than something like being able to buy tobacco in parts of the country but not other parts?

    (I'm not trying to minimize the hurt to the actual person of having their gender not recognized - I'm asking why this is not viable, not why it's horrible.)

    What legal contradiction is created by a person being treated as male in one place but female in another place?
  • DoublethinkDoublethink Admin, 8th Day Host
    Because the Equality act applies on both sides of the border, so you would have Schrödinger’s protected characteristic status.
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    But, GRCs are issued so that someone is legally recognised for the gender they are where that's different from their original birth certificate. If (and IMO it's a big if) that is incompatible with the Equality Act then that would be a problem on both sides of the border. And, a problem regardless of where the GRC is issued (or, when) as the Scottish bill doesn't change the nature of the GRC, just a few minor changes to the process of obtaining one.
  • As I understand it the concern is that the same person could be (e.g.) both legally male and legally female in the same jurisdiction if they get a GRC under only the Scottish Act, which probably would cause problems for the operation of equality legislation.

    The concept that someone’s legal sex could be different from their sex assigned at birth seems to be recognized in the UK GRA - the problem as I understand it is that the UK GRA process is so cumbersome as to make it impracticable for many people. In principle it seems that it should be possible to make this process less cumbersome without necessarily going as far as the Scottish Act does.
  • Alan Cresswell Alan Cresswell Admin, 8th Day Host
    The Scottish bill (not an Act) is a minor revision to the GRA, meaning that GRCs issued in Scotland will require a bit less pointless bureaucracy than those issued in England and Wales. But, they will be the same documents, leading to changes in the gender recorded on passport, driving license and other documents. The bill doesn't go very far at all, it simply removes the need for a medical assessment so that an overworked and underpaid doctor can write down something that is already known - which also takes away the perception that there's something wrong with a person who knows their gender is different from that recorded on their birth certificate (because, why else go to a doctor unless you are or think you are ill).
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