Does Scotland's New Gender Law Put Women at Risk?

Convicted male sex offenders can self-identify and serve their sentences in women's prisons.

After a contentious public debate, today the Scottish parliament passed by a wide margin the final element in putting Scotland at the forefront of progressive transgender legislation. Prime Minister Nicola Sturgeon — who this past May refused to define the word woman during a newspaper interview -  spearheaded the controversial Gender Recognition Reform Bill. And she brokered no dissent in her own Scottish National Party. When another member of parliament, Joanna Cherry, opposed the bill, Sturgeon sacked her as the Justice and Home Affairs spokesperson. Cherry claimed many others in Parliament had serious reservations but were “scared to speak out in this debate because when you do speak out, you're often wrongly branded as a transphobe or a bigot.”

At the legislation’s core is self-identification. It permits anyone to change their birth certificate and gender status by proclaiming a different gender than the sex assigned at birth. With Self-ID, Scotland joins fifteen countries — including Belgium, Denmark, Iceland, Luxembourg, Malta, Norway, and Switzerland —- at the cutting edge of transgender regulations. Sturgeon championed the bill despite public opinion polls showing that a vast majority in Scotland opposed it.

While self-ID is at its core, the Scottish bill does much more.

• The minimum age at which someone can legally change their gender is lowered from 18 to 16 (those who request a change will be issued a ‘Gender Recognition Certificate’

• There is no longer any requirement to first obtain a medical diagnosis of gender dysphoria

• The time required for someone to live their ‘acquired gender’ is slashed from 2 years to 3 months (6 months for 16 and 17-year-olds)

At the heart of the debate was the question of whether such progressive legislation might sometimes put females at risk of violence from male predators who self-identified as women.

Last month, Reem Alsalem, the U.N. Special Rapporteur for Violence against Women and Girls, wrote a letter raising concerns about the Scottish legislation. She pointed out that “violent males” could “abuse the process of acquiring a gender certificate and the rights that are associated with it. This presents potential risks to the safety of women in all their diversity...”

Even the bill’s supporters, such as Victor Madrigal-Borloz, the U.N. independent expert on sexual orientation and gender identity, admitted that “The existence of trans women and the very real risk of gender-and sex-based violence are both valid concerns.”  However, he and other supporters, claimed “it’s not valid to conflate [the concerns] in the way parts of the public debate are trying to.”

What did that mean?  The most intense part of the public debate centered on several “safety for women” amendments. They were issues so clear cut, thought many female activists and women’s rights campaigners, that they would easily prevail.

The first amendment was to stop a current policy that allows male-born prisoners who self-ID to then be housed in womens’ prisons. So far, 24 male prisoners have been transferred to women’s jails. Six are sex offenders, including convicted pedophiles and serial rapists, who have been moved solely because of their Self-ID declaration. None of the six have taken hormone treatment or had surgery to transition.  [UPDATE: On January 26, Nicola Sturgeon announced that one of those, transgender rapist, Isla Bryson, would be transferred back to a men’s prison].

Many activists are convinced that placing men convicted of sex crimes against girls and women into women’s only prisons, is a “ticking time bomb” for more sexual assaults. The Scottish parliamentarians were not persuaded. They voted to enshrine the rights of those incarcerated for sexual offenses to Self-ID and obtain a transfer to the prison of their newly adopted gender.  

More crushing was the failure of an amendment to prevent anyone freed from prison, after having served time for sexual felonies, including rape, from self-identifying to obtain a Gender Recognition Certificate. Proponents raised concerns that dangerous male predators might self-ID as women to gain access to single-sex spaces. Parliament rejected that amendment by a single vote.

Common sense was the big loser in legislation that allows convicted sexual predators — simply on their identification with the gender of their victims — to be transferred to prisons filled with more potential victims. Where are the safeguards when convicted male sex offenders are freed from prison and their Self-ID gets them access to venues and spaces used now only by women?

Laws to stop discrimination and harassment against the trans community are needed. Legitimate trans rights must be protected. But trans rights cannot be won at the expense of the potential safety of women. What is hailed as a step forward for trans activists is at the same time a setback for women’s rights.  Supporters of the Gender Recognition Reform Bill did not do it to hurt women. That is, however, its logical consequence. It is the “new misogyny” according to many female activists. Author Kara Dansky is blunt: “Only men could oppress women for thousands of years, then turn around, put on a dress, and complain that they are the most marginalized group in society.”

UPDATE

February 9, 2023: Scotland’s prison system reversed Sturgeon’s policy of sending convicted male sex offenders who self identified as women to female only jails. After a tsunami of public outrage over the transfer of a male double rapist — Adam Graham calling himself Isla Bryson - to a woman’s jail, officials announced that prisoners would be sent to jails initially that matched their “birth gender.”

February 13, 2023: A public opinion poll revealed that 4 in 10 Scottish voters thought Nicola Sturgeon should resign, with many citing her steadfast refusal to say whether double rapist Graham/Bryson was a woman or man. Sturgeon claimed she did not have “enough information.”

February 15, 2023: Nicola Sturgeon shocked Scotland with her resignation, admitting she was “a polarizing” figure but denied she quit over the gender controversy.