Ahead of the census debate we are concerned that the definitions of male and female in Scots Law and practice need to be robust and that appropriate protections can also be put in place for the trans community through proper data gathering. But conflating sex and gender serves no-one and hurts many.
We saw this weekend that a women’s festival which was fully compliant with UK law and even included transwomen in women-only events was subject to a barrage of hate and hostility from activists for not including obvious males who self-identified as women – despite the fact that this would contravene UK equality law. Instead of supporting these women, our government funded organisations (which shamefully included Edinburgh Rape Crisis) declared that they did not have a policy enabling single-sex provisions on the grounds of biological or legal sex and thus they would not support even open workshops provided by the Audacious Women Festival – as the organisers occasionally invoked provisions to restrict events to women, those with gender recognition certificates or with the legal characteristic of gender reassignment. In doing so, they effectively declared that Scottish government funded organisations will only recognise full and open access to both sexes, irrespective of the nature of the service provided. One might hope for better from a rape crisis shelter.
Today, we learnt that a serial youth sex offender, Katie Dolatowski, a biological and legal male who assaulted two young girls in toilets in Kirkcaldy and Dunfermline has been placed in a women’s shelter in Fife in accordance with council policy. Fife Council claim they do risk assessment. This decision was defended by Dr Katie Nicoll Baines of Edinburgh University who was instrumental in targeting the Audacious Women Festival and was quoted this week in the Times. Dr Baines also threatened to report to Twitter any who “misgendered” Dolatowski. Baines was present with the Sisters Uncut and Lighthouse Books protest which targeted the For Women Scotland meeting of the 31st Jan which resulted in heightened security measures after the venue received a barrage of threats throughout the day.
We are also aware that MSPs have been in receipt of a sensationalised letter from activists which smear women concerned about the erosion of our rights. We have written a response:
We have become aware that a letter has been circulated to female MSPs in advance of the debate on the census. It is sensationalist and inaccurate: misrepresenting the social and legal position in Scotland and casting unwarranted smears on the grassroots women’s organisations seeking to preserve legal protections. The authors appeal to “free speech” while simultaneously seeking to deny the right of free expression to anyone who disagrees with their ideological standpoint: anyone who accepts biological reality and science (which includes men, women and members of the trans community) is accused of transphobia.
The reality is that sex based rights are enshrined in the Equality Act. This should be defendable under law, but a series of policy decisions by individual organisations have chipped away at women’s rights. Sex and gender reassignment are two separate protected characteristics which sometimes impinge on each other. That there is a lack of clarity in overlapping laws and policy is one of our main concerns ahead of reform of the GRA and we see it as essential for the protection of all groups that these definitions are legally robust.
When this debate began, we were told that we were unreasonable and that the Equality Act would protect us. Recently, we have seen that our fears that the end-point was full access for any male to women’s sport, prisons, changing rooms and refuges, solely based on a nebulous, indefinable feeling are fully justified. Tennis legend and long-term LGBT supporter Martina Navratilova has been demonised for suggesting that males who have not medically transitioned should not be allowed in women’s sport. Young and rather privileged young women may come to understand too late the rationale for the protections they thoughtlessly discard.
While the majority of the country are fully committed to ensuring that trans identified individuals do not face discrimination, they nevertheless make a distinction between those with the condition of gender dysphoria, who may have undertaken or be seeking reassignment surgery, and others who fall under the ever expanding Stonewall umbrella. Surveys – including one undertaken and hurriedly hidden by Pink News – show that over 80% are concerned that fully intact male bodied people should not have access to women’s spaces, including prisons and rape shelters.
The authors of the letter also drew on discredited information about suicide. Such sensationalism and weaponisation is contrary to the Samaritans guidelines, and is inaccurate: Tavistock report rates below 1%. We have no doubt that those in all vulnerable groups are at risk, but there is no evidence to suggest that allowing self ID alters suicide ideation. Indeed, this may cause underlying mental health issues to be overlooked: the recent leaks from the Tavistock clinic illustrate the risk that bereaved children, for example, are being horribly failed by unquestioning affirmation. Many in the trans community have spoken about their fear that medical and counselling options are being delegitimised and their identity misappropriated.
The notion that our voices predominate in this debate is solely due to the strength of the grassroots momentum. Government funded organisations are compelled by the terms of that funding to reject single sex provision. Privately, many women who work in such organisations have brought their fears to us – fears that include the risk of disciplinary action. Engender, Scotland’s supposed feminist group, perhaps worried they could not compel the membership, cancelled a discussion on the topic and has not rescheduled. Meetings of Forwomen.scot and other groups have been subject to such vicious campaigns that we have had to pay for security in order to congregate and discuss law.
Only this week the Audacious Women’s Festival in Scotland was subjected to targeted harassment for organising events which were in full conformity with the Equality Act. Some of the events dealt with personal or intimate female experience and, as such, were women-only but, nevertheless, were open to those with a Gender Recognition Certificate or any who had undergone reassignment. The organisers quoted the Equality and Human Rights Commission guidance in outlining their position. Sadly, this was not enough for opponents who overwhelmed venues and other organisations with complaints that they did not include self identifying trans and non-binary males. Glasgow Women’s Library, shamefully, pulled out at the last minute, causing inconvenience and distress to organisers and participants: some have spoken up on social media about how positive and moving they have found previous events. Even more concerning for vulnerable women, Rape Crisis Edinburgh have also withdrawn support. One might hope they would understand the importance of safe single sex spaces to allow abused women to heal and become whole. Instead, they tweeted the number of helpline for those affected by “transphobia”.
We believe that it is unlawful for venues to refuse to host women only gatherings as this constitutes discrimination on the grounds of sex. While statute matters, however, there is no case law on this issue. If laws are unenforceable or if public bodies and government refuse to uphold them, we will see more instances of women being intimidated. We believe that ultimately some of this will be tested in court but that is assuredly no way to make sound legislation. The census debate provides a valuable opportunity to clarify that sex and gender are distinct. Sex matters. It matters in healthcare outcomes because medical conditions, like Alzheimer’s and heart conditions, present and progress differently in men and women. It matters for the provision of services and understanding the nature of discrimination. It matters in our understanding of the causes and effects of violence. It matters because many women will self-exclude for cultural or social reasons if the lifeline of single-sex provision is snatched from them. Moreover, other groups will not be protected if their unique identity and experiences are indistinguishable from those of women. The Scottish Government needs to be proactive in ensuring that any law passed on this contentious issue is sound, fair and protects all parties.
LETTER SENT TO MSPs BY TRANS ACTIVISTS:
We, the undersigned, are a large and diverse group of women who are committed to ensuring that trans people feel welcome and safe within our society.
There has recently been a rise in ill-informed opinion pieces, where writers have continually insinuated that trans women are not women. This is transphobic. These same pieces intentionally misrepresent current legal statutes, equalities policies, and public attitudes in Scotland.
Since 2004 the Gender Recognition Act has realised, in law, the rights of trans women as women and trans men as men. Since 1999, the Sex Discrimination Act and then the Equality Act have recognised, in law, the right of the transgender community not to be discriminated on the basis of their gender reassignment. The right of trans people to access gender specific services is an already settled legal matter.
Many national and regional news outlets routinely fail to recognise this legal reality, or the position of the majority of society. Instead, it is our perspective that writers rely on recycling outdated arguments in an uncomfortable attempt to shoehorn trans identities into much needed conversations about gender based discrimination and violence.
We believe that national conversations about gender-based discrimination and violence are necessary, however these conversations should not in any way attempt to roll back the rights that trans people already have in Scotland, nor spread misinformation.
In the Scottish Government’s recent public consultation on reforming the Gender Recognition Act (2004) a majority of respondents supported gender self declaration, as well as recognising non-binary people. As a collective of women, we urge that trans-exclusionary writers do not suggest that their narrow and archaic arguments are in any way representative of the women of Scotland. They do not speak for us.
This is not an issue of Freedom of Speech. Both sides have a plethora of platforms to outline their position. However, it is imperative that these platforms should not be used to spread misinformation or misrepresent the law or the facts in this area.
When this conversation is reduced to allegations of “shutting down debate”, it attempts to purposefully discount the position of many women – like us – who support the trans community. We will be heard.
Trans people have played an integral role in every civil rights movement to date; from LGBT equality to women’s causes. Attempts to airbrush trans people from conversations regarding equality and human rights, or to exclude them from advancements for LGBT and women’s rights, have happened before. Such efforts may have re-energised, but they are nothing new, and we say as a collective of women: they are not representative of us. We support trans rights.
Outlets and commentators have an ethical responsibility to consider the impact of their reportage, analysis and commentary particularly on the mental health of trans young people. Recently data from Stonewall Scotland revealed that over half of trans people considered taking their lives last year. Many do not feel at home in Scotland. Some face unlawful discrimination and violence. Routine misinformation and sensationalism is contributing to a cultural climate where this is legitimised. This has to stop.
Journalists, commentators and publishers have a central role to play in ensuring Scotland is a welcoming and inclusive place for trans people.
The conversation has to change.
ETA: The above letter substantially misrepresented the legal position in Scotland. Six senior lawyers wrote this correction: https://forwomen.scot/30/03/2019/tie-letter-legal-response/