The judgment
It wasn’t even close. Every argument of the Scottish government was rejected by Lady Haldane. The S.35 judgment should have come as no surprise. Despite the much touted claims that the GRR Bill had been carefully considered and consulted on over many years, in reality the SNP and Greens had refused to acknowledge or engage with the very many feminist groups raising objections and concerns and evidence of problems. It consulted only with lobby groups they funded (£900,000 spent) who, unsurprisingly, told them what they wanted to hear, seemingly oblivious of the obvious conflicts of interest created.
Everyone else’s concerns were dismissed as “not valid” and those making them ignored or insulted in various ways. Stupidly, the Scottish government made a legal argument in the For Women Scotland case that was the complete opposite of what it told Holyrood: a Scottish GRC would simultaneously be something that made no difference to anyone other than the holder but also one changing a crucial definition in national legislation. In his immediate response, the First Minister ignored the judgment’s clear statement about S.35 being an integral part of devolution. He then argued that only independence would allow him to pass this Bill, thus seeming cross that Scotland cannot pass laws having an adverse effect on women’s rights in Britain so wants independence to be able to do this to Scottish women. What a hill to die on.
A good day to bury bad news
On the same day the judgment was issued, we also learnt that under the so-called new Scottish Prisons Policy, coming into force in February 2024, men who identify as women and who have been convicted of, or are on remand awaiting trial on, offences of violence, including sexual offences, against women will not be sent to women’s prisons unless there was “compelling evidence that they did not present an unacceptable risk of harm to those in the women’s prison“.
This will be determined by the Scottish Prisons Service and a committee. Quite what will amount to “compelling evidence“, evidence more compelling than the fact of being convicted of a crime of violence against women, is wholly unclear. Note also the assumption that acceptable risks to women are OK. These are women who cannot run away, are locked up and in the care of the state. They are one of the most vulnerable and marginalised groups of all. But an acceptable risk of harm to them by violent men is deemed OK. As is the risk of harm caused to women prison officers. The policy also allows male trans prisoners deemed too dangerous to be in women’s prisons to go there shortly before their release to join in “activities” and to learn how to be women. Once again the default assumption is that women prisoners exist for the benefit of violent dangerous men. Women prisoners are, you see, support animals for men, there just to make men feel better about themselves or more like women.
Not content with this, the Scottish government will refuse to share data about how many trans identified men are held in women’s prisons, even on an anonymous aggregated basis. This will make it impossible to monitor the policy, assess its consequences and know whether harm is caused. The policy’s proponents will then happily claim there is no harm, having carefully ensured that any such evidence is hidden. It takes some chutzpah for Yousaf to claim as he also did in the same week, during Scotland’s White Ribbon campaign, that he’s working to end male violence against women. Meanwhile, over the last 5 years, Scotland’s PISA scores in maths, science and reading have declined, a result rightly described as “poor” by him. Some might wonder whether this results from the Scottish government’s rather odd set of priorities over recent years.
Ignore, insult, actions not matching words, mess up, cover up. Who’s advising the Scottish government? The Post Office?
The lessons
This has been an object lesson in how not to govern, how not to legislate, how to seem both deranged and incompetent, unbothered about voters’ priorities and wasteful with public money.
Plenty of lessons here for other parties. The Tories’ obsession with Rwanda has many of the same elements: an unworkable, unlawful, expensive policy pursued to appease a few fanatics which does not even try to address the issues of migration in the current world and distracts from other serious problems.
It is a lesson too for Labour. Yousaf has 21 days to decide whether to appeal. A sensible First Minister would cut his losses. But if he doesn’t, final resolution of this will likely happen under a Labour government. S.35 is permissive – not obligatory. Will Labour stand by the S.35 Order? Will it do the same if the Bill is brought back? Until recently self-ID was its policy. It still is for Scottish Labour.
Labour has recently rowed back a bit on self-ID. But its support for women’s rights under the Equality Act (“EA”) has been less than full-hearted. See “Is The Equality Act Safe?” From Starmer downwards, Labour politicians (even lawyers who might be expected to know what the Act actually says) persistently misdescribe women’s rights under it with their references to “safe spaces” for women – a term unknown in the EA, and which ignores the many reasons legally permitted for single/separate sex spaces, services and associations.
There is a lack of clarity on what its revised policy actually is. It too is refusing to listen to those with concerns (the Labour Women’s Declaration was not allowed a stand at Labour conference), listening only to a lobby group whose stated policy since 2015 has been to remove all sex-based rights from the EA. It would do well to engage properly and intelligently with the concerns on this; see “Questions, Questions“. It would do well to really listen if it intends going ahead with a watered down version but wants to avoid making the same mistakes and face the same problems the Scottish government has. S.35 does not apply to Westminster but the ECHR – and its many rights, which apply to women just as much as to others – still does.
The law – as Yousaf and Sunak have discovered – has bite. So do women scorned.
Note: the picture is of the members of Murray Blackburn Mackenzie, an independent policy analysis collective, made up of Dr Kath Murray, Dr Lucy Hunter Blackburn and Lisa Mackenzie. Their analysis is invaluable and can be found at https://murrayblackburnmackenzie.org. The other two women are Marion Calder from For Women Scotland (https://forwomen.scot/) and an unknown member of the Scottish Feminist Network.
