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When human rights conflict, we must find an approach that centres the rights of all

4 min read

In the rush to enshrine gender identity ideology in law, equality law and human rights risk being forgotten

LGBT History month should be a time of celebration, but many lesbians don’t feel like celebrating. We feel that we are being forcibly redefined as same gender rather than same sex attracted, so that men who identify as women can have access to our book groups, our walking groups, pubs, clubs and yes, even our beds. This phenomenon finds its apotheosis in Scotland’s Gender Recognition Reform (GRR) Bill which would allow anyone to self-identify as the opposite sex with next to no meaningful safeguards. In fact, as we have seen from the scandal of the placing of a rapist in a woman’s prison, de facto self-identification is already a fact of life in many areas of public policy in Scotland and indeed across the United Kingdom. While I am not opposed to reform of the process of obtaining a Gender Recognition Certificate, I do not support self-identification, particularly because of its adverse effect on the right of lesbians to live as same sex attracted women.

At present we have the right to do so under the Equality Act (EA) and under the Human Rights Act (HRA), although those rights are often ignored. Under the EA it is lawful for an association to restrict membership to those who share a protected characteristic (in this case, sex and sexual orientation). Articles 8 and 11 of the European Convention on Human Rights (ECHR) also protect the rights of everyone including lesbians to privacy, dignity and to freedom of association.

Politicians would do well to remember this but in the rush to enshrine gender identity ideology in law, equality law and human rights have been forgotten, particularly as they relate to the rights of women and LGB people. 

When Alister Jack exercised his right to veto the Scottish parliament’s Gender Recognition Reform Bill (GRR Bill) he did so because of its adverse effect on the Equality Act. However I believe that the bill would also have an adverse effect on the human rights of women and LGB people.

Human Rights are universal but those who think women should wheesht seem to have forgotten that

In my work as chair of the Joint Committee on Human Rights (JCHR) I lead the scrutiny of 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 but we also look at the impacts on the rights of others, whether intentional or unintentional. 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. Unfortunately, while trans rights were considered during the bill’s parliamentary process, there was no proper analysis of the impact of a system of self-identification of sex on the rights of women and LGB people. Human rights are universal but those who think women should wheesht seem to have forgotten that. 

I believe that if the GRR Bill had been passed by an independent Scottish parliament it would have faced a legal challenge because of these rights issues. In the summer of 2014, Nicola Sturgeon, then-deputy first minister, published plans for a written constitution for an independent Scotland. In that paper she proposed that both the rights contained in the ECHR and the protected characteristics in the EA be enshrined in the constitution of an independent Scotland. This would have meant that any legislation contravening those rights would be in breach of the constitution and thus open to legal challenge. 

Now that Nicola Sturgeon has resigned, I think it’s unlikely that the legal challenge to the exercise of the s.35 veto will proceed. Undoubtedly the fallout from her championing of the policy of self-identification and her failure to acknowledge the valid concerns of women and LGB people about its unintended impacts have been factors in her going. It’s time for the GRR Bill and the policy of self-identification to be revisited with an approach that centres the rights of all.

Joanna Cherry is SNP MP for Edinburgh South West

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