Jamie Gillies, Free to Disagree spokesman
During a meeting of Holyrood’s Justice Committee yesterday, Cabinet Secretary Humza Yousaf faced an interesting line of questioning from Labour’s Johann Lamont. ‘Does the Scottish Government believe there are only two sexes or does it think that sex is a spectrum?’
A few years ago these questions might have elicited a chuckle. The idea that there are two sexes, male and female, has been perfectly orthodox since about the beginning of time. Asking if there are, in fact, three, four or a hundred different sexes is akin to asking whether water is, indeed, wet. But there was no whiff of humour in yesterday’s exchange. A grave-faced Yousaf ducked the questions, refusing to be drawn on whether men and women are male and female. The fact that he did so is incredibly instructive.
In Scotland today, the debate over ‘sex’ and the more abstract term ‘gender’ is about as toxic as it gets. The online world is awash with tribal skirmishes over the meaning of these words and how legislation might retain or alter their meaning. On one side of the debate, there are women, keenly aware that many hard-won rights and entitlements are grounded in biological sex. Campaigners for women’s equality, both historical and modern-day, have affirmed conventional definitions of the terms.
“The debate over ‘sex’ and ‘gender’ is about as toxic as it gets”
On the other side of the debate are trans activists who ascribe to more modern – and more abstract – ideas about sex and gender. They hold that people have an innate ‘gender identity’ which can be different from the sex they were ‘assigned’ at birth. Activists believe that men who identify as women and women who identify as men should have access to the rights and entitlements of the ‘gender’ they affiliate themselves with, even if their biological characteristics would usually preclude them from such access.
This culture war is increasingly seeping into the political discourse, especially at Holyrood, considered a shade more ‘progressive’ than Westminster. An example of this is the Scottish Government’s proposed, sweeping changes to the Gender Recognition Act, the mechanism by which trans people legally change sex. Ministers have suggested ‘streamlining’ the process by doing away with medical checks and allowing people to legally change sex merely by stating that they have a desire to do so.
Women are, understandably, concerned about this. It could allow nefarious men to gain official documentation saying that they are women in order to gain access to women-only spaces, to spy on women and girls and perpetrate abuse. Tragically, this has happened in other jurisdictions where such changes have been made. In the United States and Canada, there is even evidence of men gaining access to women’s refuges – places where they go to escape mental, physical or sexual abuse at the hands of men.
“The culture wars are increasingly seeping into the political discourse”
Where one stands on the Gender Recognition Act is fast becoming a litmus test in Scottish politics – are you woke or are you broke? The battle lines over this particular policy are most stark in the SNP itself. Recently, veteran MP Joanna Cherry was sacked from the Westminster front bench, purportedly for her position on GRA reform and ‘trans rights’ more generally. At the same time, First Minister Nicola Sturgeon nailed her colours to the mast as a staunch trans ally. She published an ‘unscripted’ video message on Twitter calling for trans activists to ‘come home’ to the SNP and adding ‘some people will say I’m woke. I don’t care.’
All of this makes it obvious why Humza Yousaf refused to be drawn on the question of ‘sex’ yesterday. If he had affirmed Johann Lamont’s assertion that there are two sexes, male and female, he would have faced the ire of trans activists. If he had affirmed the belief that sex is on a spectrum, he would have incurred the wrath of women. It was politically astute for Yousaf to simply give no comment on the matter. There is, however, a glaring irony in his behaviour.
The fact that elected officials in Scotland are scared to venture a view on the nature of biological sex shows exactly why criminal legislation covering discussions on sex and trans issues more widely could be problematic. Yet, that is exactly what Humza Yousaf is proposing with his Hate Crime Bill. The bill would usher in a raft of new offences on the ‘stirring up of hatred’, including on the grounds of ‘transgender identity’. Citizens who behave in an ‘abusive’ manner with the intent of ‘stirring up hatred’ against trans people could find themselves facing a prison sentence. It’s unclear what ‘hatred’ means for the purposes of the bill. This is worrying when activists hold that expressions on the nature of sex are ‘hateful’ and ‘transphobic’ in and of themselves.
“How would the likes of Joanna Cherry fare when comments about trans rights not only lead to a political demotion but a summons from a procurator fiscal?”
Most alarmingly, there is currently no free speech provision in the bill on the issue of transgender identity. Only two free speech clauses exist, on religion and sexual orientation. The Scottish Government did propose an amendment to allow ‘discussion and criticism’ of transgender identity. But after a mighty uproar from trans activists, it u-turned and withdrew the amendment. At present, it’s unclear what kind of free speech clause, if any, will be written into the hate crime proposals on this most-thorny topic. If a free speech clause does appear, it is likely to be very narrow in its scope.
I for one am deeply concerned at the prospect of hate crime laws which do not allow for the most robust protection of free speech – especially on issues which are highly contentious. How would the likes of Joanna Cherry fare when comments about trans rights not only lead to a political demotion but, potentially, a summons from a procurator fiscal? Humza Yousaf’s refusal to answer the question on sex and the shape of his hate crime proposals should worry all of us who value free and open debate.
Jamie Gillies is a campaigner and spokesman for Free to Disagree