Shower of Scotland: ministers risk another skelping

Still nursing a ‘skelped bahookie’ after repeated legal thrashings at the hands of For Women Scotland (FWS), the Scottish Government has hit upon another way to wiggle around women’s rights.

Its long promised Scottish Human Rights Bill would require public bodies to consider “gender identity” when drawing up policies and delivering services. Tellingly, The Times reports ministers do not propose to define “gender identity”, instead leaving its meaning for the courts to determine.

You might think SNP ministers had endured enough stooshies over women’s rights. FWS took them all the way to the Supreme Court and secured the landmark ruling that “woman”, “man” and “sex” in the Equality Act mean biological sex. But it seems the Scottish Government’s stupidity is matched only by its tenacity.

Since losing at the Supreme Court, ministers have fought FWS over two further policies. When the group sued over guidance allowing boys into girls’ facilities and sex-separated PE groups at school, the Government initially insisted it was lawful, before backing down and replacing it. Ministers dug in over prisons, only for the Court of Session to rule that policy unlawful too. Last week they lost again, after resisting FWS’s demand that the offending prison guidance be formally quashed. 

FWS fears that, having failed to redefine sex through the front door, ministers are attempting to smuggle gender identity in round the back and warned the Bill was “almost guaranteed to be another law that will end up in the courts”.

A FWS spokeswoman told The Times: “Trans organisations have successfully lobbied to get ‘gender identity’ into the equality duty for the human rights bill. This is huge — gender identity isn’t in any of the international treaties the Scottish government wants to incorporate into Scots law, and it’s not in the Equality Act.”

There is a canny wrinkle. In practice, councils could be required to consider the effect of decisions on “gender identity” without actually being required to change those decisions.

But the proposed Bill must operate alongside the Equality Act and remain within Holyrood’s competence under the Scotland Act. If ministers stray into reserved law, another rammy with Westminster, and potentially another day in court, beckons.

The Scottish Government insists it has finally got the message.

A spokesperson told The Times: “The Scottish government accepts the Supreme Court judgment. The proposed human rights bill will not overturn this decision.

“Since April last year we have been taking the necessary steps in response, making changes to policies and guidance impacted by the judgment.”

FWS isnae convinced. Given its record against the Scottish Government, it seems fair to say their lawyers will be on standby.