Outside Scottish Parliament in support of the GRR Bill. December 2022. Photo: Graham Checkley.

What next for the Gender Recognition Reform Bill?

rs21 member Sara Bennett considers what will happen to gender recognition reforms following the election of SNP leader Humza Yousaf.

On 27 March 2023, Humza Yousaf was elected leader of the SNP, following the shock resignation of Nicola Sturgeon the previous month. Pitched as the progressive continuity candidate most able to carry on where Sturgeon had left off, he gained endorsements from the establishment inside the party. Despite this, he hardly secured a convincing victory with the membership, gaining just under 2,500 more second votes than his closest rival, Kate Forbes.

Humza Yousaf is taking over the reins of an unwieldy beast. Immediately following Sturgeon’s resignation, the timing of which many would say was due to the coming storm on the horizon, controversies regarding missing member funds, dodgy loans and the arrest of her husband and party head man Peter Murrell have taken the shine off the party’s glossy veneer. Yousaf inherits a divided and wounded party, and one that seems increasingly unable to live up to its own supposed raison d’être – an independent Scotland. The SNP is now slipping down in voter intention polls, mainly against Labour, a pro-union party.

One area Yousaf has been eager to highlight is his commitment to what has come to be seen as the liberal progressive politics of Sturgeonism. Becoming the first Muslim national political leader in the UK is indeed something to celebrate. What’s more, the trans and wider LBGT community has, in the main, been relieved to see the election of Yousaf. He was the only candidate in the leadership campaign to state openly he would defend the Gender Recognition Reform (GRR) Bill and mount a legal challenge against Westminster’s use of Section 35, which allows the UK government to veto legislation made by the Scottish devolved government.  

The GRR has become a key wedge issue and one that shows no sign of fading into the background. Similar to laws which already exist in other countries, it isn’t in itself a radical piece of legislation and has been much misrepresented as to what it allows trans people to do. However, once politically weaponised, it became a handy stick with which to beat Sturgeon from within and without her own party. Does it risk being cast aside completely now that the beating has been meted out?

Since the GRR Act finally passed in December 2022, it has met with obstacles. Westminster resorted to the ‘nuclear option’ of Section 35, (the first time this has ever been used in the history of the devolved government), provoking several protests in both Scotland and London. The generalised transphobic moral panic continues to be expressed on an almost daily basis in the British media and shows no signs of abating.

Nicola Sturgeon’s resignation announcement threw the SNP into disarray over its search for a credible replacement leader. Her determination to see the GRR pass led to her being met with a wave of hostility. In her resignation speech, Sturgeon described this backlash as ‘brutality’.

Before the more recent revelations of SNP’s shenanigans came to light, some claimed that it was the GRR Bill that had finished Sturgeon off. The case of trans prisoner and convicted rapist, Isla Bryson, arrived promptly on the scene just weeks after the bill passed. Scant media attention was paid to the fact that Bryson had not interacted with any women whilst being held at Corton Vale prison, nor that the GRR would have no impact on whether a trans prisoner such as Bryson would be placed in a male or female prison (each case is decided upon individually). Instead, Sturgeon was bombarded with questions over whether Bryson was a man or a woman and under mounting pressure, it wasn’t long before Sturgeon was stating that Bryson probably wasn’t ‘genuinely trans’ (now echoed by Humza Yousaf too). In saying this, Sturgeon undermined her own previous position and lent greater credibility to the popular myth that predatory men will abuse the GRR to access women-only spaces. She was on the back foot and the GRR’s future started to look less certain. Clearly the most significant and immediate barrier to its passing was the use of Section 35. Nevertheless, its use is written into the devolved settlement and one wonders whether Sturgeon would not have been advised of its possible use.

Some may even argue that Section 35 initially played to the advantage of both governments. On the one hand, it allowed the Tory government in Westminster to flex its unionist muscle by being seen to put Scotland in its place while trying to appease some of its own internal opponents by distracting attention from its own failings. As for Sturgeon, it allowed her to argue that it was a ‘full-frontal attack on our democratically elected Scottish parliament’ and that Westminster’s undemocratic manoeuvres only highlighted the case for independence, whilst simultaneously taking the responsibility off her shoulders to see the GRR through.

One argument that arose during the leadership election and continues today is that the GRR has been a distraction from the independence question: ‘It’s time for the Scottish Government to focus on Self Determination and spend less time obsessed with Gender Self Identification, as the Alba party recently tweeted, using the hashtag ‘#AxeTheGenderBill’ (as if these positions are mutually exclusive). What is perhaps more accurate is that the media focus on the GRR has distracted attention from the SNP’s less than illustrious record on a range of other subjects. When it comes to economic and business issues, there is no strong dividing line within the leadership, which supports neoliberal, market or foreign-based capital solutions for everything from its proposed national care service to energy. Not surprisingly, an Ipsos poll from last October found Scots dissatisfied with the government on almost all major issues.

It has become increasingly clear that the SNP’s dominance in Holyrood has relied almost exclusively on the projection of a progressive liberalism and an increasingly chimeric goal of independence. After the high point of the 2014 Independence referendum, next to nothing was done to build on the grassroots independence momentum. The Yes demonstrations, once very large, started to dwindle during and after Covid. When 7,000 marched on Saturday 6 May at an All Under One Banner demonstration in Glasgow, it was Sturgeon’s ex-mentor turned nemesis, Alex Salmond, and Ash Regan who spoke from the platform. They were the ones calling for unity across the movement.

Rather than build on the grassroots movement, Sturgeon pursued the legislative route for IndyRef2 and, somewhat predictably, found it to be denied. In reality, for all the talk of another referendum, the plan under Sturgeon was effectively shelved. In this light, Sturgeon’s desire to push through the GRR before she departed now looks increasingly like an attempt to leave something as her legacy, seeing as independence clearly hasn’t been.

It’s even questionable whether Sturgeon would have been so devoted to this project had it not been considered to be a fairly easy win, having had both cross-party and the general public’s support. After all, it’s a relatively inexpensive change to bring forth when compared to the investment required to improve the NHS or education. Indeed, under the SNP, on some of these key issues, it’s probably more accurate to say that Scotland is in reverse. According to a recent report by the Glasgow Centre for Population Health, Scotland is in the grip of a ‘social emergency’. Early deaths among women living in poverty in Glasgow now exceed rates seen 20 years ago. Whilst the UK austerity measures have played a substantial role in creating this disaster, the SNP has to shoulder the blame for its reluctance to wield some of its own strength under its devolved powers to mitigate some of the worst aspects.

Although not completely finished, the SNP is now definitely weaker. So, what next for the GRR? Whilst Humza Yousaf confirmed recently that the Scottish government will lodge a petition for a judicial review over Westminster’s veto of the Bill, it is yet to happen. What with threats to change the definition of sex in the Equalities Act 2010, the legacy of the last legal challenge over IndyRef2, and opposition within the SNP itself, a successful outcome is far from assured.

First and foremost, the GRR is the victim of political weaponisation and transphobia fuelled by the Tories. But it is also partly a victim of Sturgeon’s strategy as leader and should serve as a reminder of the limitations of Scotland’s devolved settlement. History tells us that relying on legislative and constitutional routes alone rarely brings far-reaching change, whether that be for trans rights or even the question of independence itself. What should be clear is that the Scottish government cannot be relied upon to deliver this change without pressure being brought to bear. The Sturgeon era has ended. What replaces it remains to be seen and will depend on the forces that shape it.