The Scottish Trans Law: A Tale of Two Interpretations

As you will hopefully be aware, the new transgender law passed by the Scottish Parliament has been vetoed by the UK government, an article like this one giving the general background.

The powers the government has used to do this involve a part of the 1998 Scotland Act which gives the government the power to stop a bill getting royal assent if they have reasonable grounds to believe the law in question would have an adverse effect on legislation reserved to Westminster.

The section of the Act that gives them this power is Section 35 and it has set the stage for a bitter constitutional showdown.

While it’s not a bad thing that the government blocks laws that can have an adverse impact on UK-wide legislation, many transgender people do not feel that that is what is happening here, and there’s an under-reported segment on this that is giving rise to this article.

Fundamentally, the TERF and EHRC interpretation of the various UK equality laws as they stand is that transgender people can be excluded from female only spaces under a provision of the Equalities Act 2010 that allows transgender people to be excluded as part of “a proportionate means of achieving a legitimate aim” (see the EHRC guidance, which lifts that phrase directly from the Act).

To them, a legitimate aim is to protect women and a proportionate means” is to exclude trans people from single sex spaces, and all of this ties into other parts of the 2010 Equalities Act, which also protects women and, while it does protect “gender reassignment” as a characteristic, it does not protect the changing of sex and the transgender insistence that transgender people count as the sex they say they are.

Under this interpretation, you can see a clash between UK and Scottish law, in the sense that streamlining the process undermines the UK’s processes to change the sex biological marker on people’s documents. By allowing the changing of sex to be easier, the Scottish Parliament is basically changing UK law in the functioning of how the 2010 Equality Act works.

However, that isn’t how the law works. Sure there have been some weird wins for the anti-trans crowd, like a Scottish court that ruled that pay statistic bodies must exclude transgender people not to skew the statistics, but the very most basic part of the EHRC interpretation was actually legally tested and it failed.

In fact, it failed so badly, that a crowd-funded case did not even manage to go to a court to be tested, it failed before then, as it was ruled that the law just didn’t work like that and a trial could not even start.

(Weirdly, the level of media reporting was so low on this outcome, that I can’t even get a simple internet search for the story to provide a sensible link, and instead, positive coverage of the Maya Forstater case and others drowns out the search outcomes. It’s one of the reasons I’ve started bookmarking positive reporting because if you miss the few stories that actually report on these, you can never find them again).

This weird divide, in which anti-trans activists cannot force a legal change through the courts, yet somehow convince everyone else that law works completely differently to how it’s written, is at part a problem behind the whole mess, since the actual Bill passed by the Scottish Parliament will have been vetted against what the law actually is and what it actually says, and not what anti-trans campaigners would like it to say.

However, the banning of the Bill under Section 35 very much interprets the law as the anti-trans people would like it to be, paving the way for a legal showdown in which the two interpretations will tested yet again indirectly.

A positive outcome of this whole mess would be extra clarity which even the UK media cannot wash away under the carpet by burying it. At the end of the day, the issue of which version of trans rights we actually have has now led to a Consitutional Crisis, and it doesn’t get more serious than that.

(A previous version of this article referred to the fact that exceptions could be made for access to women only spaces was due to the 2004 Gender Recognition Act. This is not the case)