Nicola Sturgeon’s trans law is constitutional mischief, not another front in the culture war

In the war about sex and “gender”, the two sides agree about only one thing: the stakes are high. It is about who each person is and how this can be determined.

The fiery rhetorical atmosphere resembles that of Christian sects in 17th-century England, each believing they possess absolute truth and denouncing the other. In some ways, the ill feeling may actually be worse nowadays: in the 17th century, there were no social media.

Another aspect of those past struggles was that they often divided England and Scotland. A monarch seeking to control both had to treat each differently. Nearly 400 years on, it still matters. On his accession last September, our new King promised to defend the separate rights of the Church of Scotland, and in May he will be crowned on condition that he upholds the rights of the Church of England.

There are echoes of all this in Nicola Sturgeon’s Scottish Gender Recognition Reform Bill. The sound of her Bill’s abbreviation – GRR – conveys the angry mood. In her mind, the First Minister is making Scotland a light among the nations for its treatment of trans people, contrasting it with the Stygian darkness of the Westminster Government. She pushed the GRR through with relish.

In doing so, Ms Sturgeon has deliberately thrown down a challenge to the Conservative Government in London. By the end of next week, it must decide whether to act.

Identity issues, like religious ones, are extremely tricky for law and politics. They are deeply felt, conceptually difficult and – because they often cut across party lines – uniquely hard to manage.

The usual rough-and-tumble language of politics is unsuitable for them. In important policy questions such as, say, trade union reform or defence spending, MPs can happily trade barbs without causing personal hurt. That is much harder over gender questions.

In the case of trans people, you are talking about a small, vulnerable minority who often suffer rising abuse during such controversies. On the other side, many women feel threatened by the idea that men can receive a Gender Recognition Certificate (GRC) merely by “self-identifying” as women. That is what the GRR, throwing out the much more rigorous previous tests, introduces.

Just as Ms Sturgeon may be spoiling for the fight, so may the Conservatives. Ministers say they have never received such a big postbag (not literally, the Royal Mail being on strike) as that opposing the GRR. Their soundings of public opinion tell the same story.

Then there is the added joy, for Conservatives, of discomfiting Labour. From Sir Keir Starmer downwards, the Opposition is uneasy about being asked to define a woman. In Scotland, Labour put down critical amendments to the GRR, but then, when they failed, voted for it.

Resist these temptations. Any move whose main motivation was political would backfire and would deserve to do so. This is Ms Sturgeon’s mistake. The Government should not mirror it.

So the question confronting Rishi Sunak’s Government is important, but quite narrow. It is not, “Mustn’t the SNP be prevented from introducing such sex-change madness?” It is “Does the GRR exceed the rights of a devolved legislature by enacting a provision that would have a material, adverse impact on the operation of the law throughout the United Kingdom?”

If it thinks the answer to that second question is “Yes”, the Government’s clearest remedy is to invoke Section 35 of the Scotland Act 1998. That would not kill the Bill outright but would force the Scottish government to negotiate with London alterations which would make it compatible with the Act.

Section 35 has never before been used. Some who do not like the GRR Bill nevertheless think it should not be. They suspect the fuss is exaggerated because only a small number of trans people seek GRCs (the Scottish government’s estimate is 250-300 a year). The cynical ones argue that it would be cleverer to let the GRR collapse under the weight of its own contradictions, dropping all the blame into Nicola Sturgeon’s lap.

But this is unsatisfactory. No devolution settlement can work if it is in fact unsettled. When Tony Blair began his devolution in 1998, Section 35 was devised more to help devolved government than to hinder it. The Scottish Parliament wanted a big scope. Section 35 was the quid pro quo for allowing this, to prevent legal/policy mess. The SNP accordingly voted for Section 35.

It is because of its constitutional importance that the Government almost certainly will invoke it next week. Because it is a constitutional issue not, despite the GRR’s content, a sex-and-gender one, the minister in charge will be the Scottish Secretary, Alister Jack.

I gather there are no European countries in which different gender rules apply in different parts of the state. We may discover here in Britain that the question of what defines a man and a woman has effects so pervasive that they can only be managed in a uniform national system. In any event, the evidence that the GRR does indeed have adverse effects on areas of United Kingdom law is strong.

It is an irony, since trans campaigners invoke equality, that the clash comes because of equality law. The key piece of UK legislation is Labour’s Equality Act of 2010. According to Dr Michael Foran, a public law lecturer at the University of Glasgow, in a new paper for Policy Exchange, “For the purposes of the Equality Act you are either male or female, but cannot be both” and your sex is defined, under the Act, by biology.

So, in an example Dr Foran gives, suppose a biological woman with a GRC as a man, issued under the GRR, is pregnant. Can he any longer invoke the Equality Act’s protection from discrimination as a pregnant woman? Surely not, if the GRR has decreed that, by self-identification alone, he has become, in law, a man. A recent interpretation of the Equality Act in the Scottish courts implies as much.

This may sound a freakish example, but there is a wide range of issues over which strange questions arise. Take women-only associations which, until now, have legal permission to decide who qualifies for their membership. Under the Scottish GRR, must they automatically accept a biological man who, by getting his certificate after a short probationary period, can become a woman?

By bringing down the age of certification, the GRR also opens the possibility of a 16-year-old boy getting a self-identifying GRC and demanding entry to a girls’ school (or entry, as a girl, to a mixed school) without having, in any other recognisable sense, to be a woman.

Under existing law, which the GRR does not alter, it is a criminal offence for a person who has officially acquired protected information – such as a GRC, which is backed by the altered birth certificate it permits and is usable in any part of the UK – to disclose it. So, if the girls say to their teacher, “Miss, why is he allowed into our toilets when he’s a boy?” the teacher is not allowed to reply, “because he has a GRC”. The teacher must say something like, “Because she is a woman.”

None of the many questions which arise are necessarily unanswerable, but few have been answered in the GRR Bill. Yet that Bill greatly expands the scope of who counts as male or female, with effects across the whole country. It is common sense to say that, from Land’s End to John O’Groats, equality rights must be clear.