Joanna Cherry: The gender bill may have faced a legal challenge after Indy

[ad_1]

Everyone knows I oppose the gender recognition reform bill. However, I think the problems it creates must be dealt with in Scotland if not by our Parliament, then by our Courts.

However, characterizing the use of the Section 35 power to block the bill as an attack on devolution doesn’t really make sense. It is in the essence of the devolution that the devolved parliament is subordinate to the Parliament of the United Kingdom and that is why we as nationalists want independence.

In an independent Scotland, the passage of a bill by a parliamentary majority did not necessarily guarantee that it would have become law without further challenge.

If we were an independent country with a written constitution, I would expect this bill to face a legal challenge based on concerns about its impact on the Equality and Human Rights Act.

If you think back to the summer of 2014, you will remember that the transitional constitution (published in a white paper with a foreword by Nicola Sturgeon) enshrined the protected features of the Equality and Rights Act protected by the European Convention on Human Rights. Rights (ECHR) in Scotland’s new constitution.

These protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, gender, and sexual orientation. Not in a hierarchy but everyone deserves equal treatment.

So, let’s have a little hysteria and a little more cool heads. Women, old ladies, people with disabilities and those of same-sex attraction who have legitimate concerns about the effects of this law deserve to have their voices heard as do the trans people who might benefit from it. They do not deserve to have their voices drowned out after this issue has been turned into a constitutional football.

Read more: Lancashire Police ‘looking into’ Rishi Sunak for not wearing a seatbelt

I’m not opposed to simplifying the process of gender recognition for transgender people, as promised in the SNP’s statement, but simplifying should not mean eliminating safeguards. The Prime Minister has repeatedly said that the bill does not grant new rights to trans people. This is correct. You will search in vain for the word “via” on the bill. It’s not there.

Instead, the bill creates a new right for anyone to identify themselves as the opposite sex with no meaningful guarantees. It is very clear that giving any man the right to identify himself as a woman would affect women’s rights to safety, dignity and privacy. And for lesbians, the fact that any man can say he’s a woman is a threat to our right to be same-sex attraction.

Let us just remind ourselves of the kind of safeguards for the Bill that was voted on in the Scottish Parliament. Amendment to prevent known sex offenders from obtaining a gender recognition certificate (GRC); an amendment to prevent those awaiting trial for sex crimes from applying for a group think tank (that would have protected rape victims from the humiliation of having to use feminine pronouns to refer to their attackers in court); amendments to protect vulnerable women in prison; Amendments to ensure that those receiving intimate care can choose to receive it only from individuals of the same sex as themselves; Amendments to allow continuation of single-sex wards in health care settings.

Are we really saying that this is acceptable and justified?

In my work as Chair of the Joint Committee on Human Rights (JCHR) at Westminster, I carefully examine the human rights implications of bills brought before the UK Parliament. We look not only at the rights of those the bill is intended to benefit (with conservatives who are generally their companions in big business or privileged people) but we also look at the effects on the rights of others, whether intended or unintended.

Read more: SNP may regret lending UK its support on freeports

When I look at the GRR, I see that it may help the right of trans people to live in safety, dignity, privacy and respect for their own lives and beliefs, (Articles 2, 3, 8, 9 and 10 of the European Convention on Human Rights) but I also see that it may affect rights of women and LGBT people to do the same.

Sometimes rights conflict and when this happens, a settlement must be found between the conflicting rights. I don’t think there was a proper analysis of the full human rights implications of the bill during the parliamentary process.

Similarly, when it comes to the negative impact of the legislation on the Equality Act, those responsible for the plan have been warned about this by the EHRC and policy analysts such as Murray and Blackburn Mackenzie, but these warnings have not been subjected to suitably rigorous analysis.

And to those who say that the GRR expressly states that it does not affect the Equality Act, I say that this is a very naive understanding of how the legislation works. You can pass a bill saying the sky was green but that won’t change the fact that it is blue.

Much has also been said about the fact that the bill has undergone six years of consultation and scrutiny, but as National columnist Shauna Craven points out, we should not confuse length of process with thoroughness.

It now seems likely that these rights issues will be reconsidered in court. If the Scottish Government proceeds with its judicial review of the Article 35 order, strictly speaking, the Court must limit itself to looking at whether the order is lawful and reasonable, but I cannot see how it could do so without considering whether the Equality Act was in fact adversely affected .

Separately, I foresee further legal challenges to the bill on the grounds that it interferes with the human rights of women and LGBT people. The law of Scotland states that the Scottish Parliament cannot legislate in a way that conflicts with rights under the European Convention on Human Rights.

We all know that the Tories have not been pushed too far on human rights, and in any case Section 35 does not allow vetoes of the Bill on the grounds of a negative impact on the rights of the European Court of Human Rights. Others, however, care about the universality of human rights, and women and lesbian, gay, bisexual, and transgender people now have some strong and courageous folk figures, despite the attacks they have faced.

This brings me to my last point. The behavior of some MPs in the House of Commons during Tuesday’s debate was impolite.

A Labor MP has been allowed to launch a shouting tirade at a Tory MP who described her fear and discomfort at facing what she saw as a man dressed as a woman in women’s toilets, with the lightest of reproaches from the chair.

Labor MP Rosie Duffield, a domestic abuse survivor, was howled by mainly male votes. It was just a small taste of what I and others have experienced to raise concerns about the broader implications of self-identification and was one of the reasons I was absent from the room during the discussion.

Bullying is never good. It is not acceptable for anyone to bully a woman in her workplace or anywhere else just because she disagrees with her. It is especially appalling to see men do this to women. Anyone who cannot admit this should not be in public life.

Read more: Scottish councilor calls for more equality in football in Scotland

The way some people are allowed to behave during this debate is a stain on both Scottish and British politics. When some of the most vocal supporters of the legislation threaten women who express concern about its effects with violence — including sexual violence — and pro-legislation politicians look the other way, something is very wrong.

I have faced rape threats, death threats, a toxic work environment, and the threat of losing my livelihood, for daring to raise legitimate concerns about the impact of this legislation on women, girls, and LGBT people.

My experience is typical of women across the UK in politics, health services, education and other sectors. If this is what I am facing as a woman in the privileged position of a Member of Parliament, what hope is there for any woman of the working class or the powerless who wants to raise concerns about the effect of this law on her dignity and integrity or the aggregate?

Scotland could do better than this.

[ad_2]