Andy Wightman: Maggie Chapman's comments are Trumpian

For most of my life I have been engaged in political debates of one kind or another and early on I adopted two important guiding principles of meaningful debate. The first was to agree (or attempt to agree) on the facts of any matter and the second was to strive to understand opposing points of view.

The first is important since, in the absence of agreed facts, much of what passes for political debate is pointless. The public are poorly served by politicians who fail to engage in the meaningful debate that a bedrock of agreed facts enables.
The second is important both for selfish reasons (my argument is better formed if I truly understand where my opponents are coming from) but also because it facilitates meaningful debate.

The very public and rancorous debate around sex and gender is a good example of the need for agreed facts and understanding. If anyone thought that the recent Supreme Court ruling on the meaning of sex in the Equality Act 2010 would bring the culture war over sex and gender to a close, the reactions since are a stark reminder that it has some way to run yet.

The ruling is an exemplar of statutory interpretation. The justices were asked a straightforward question and set about reviewing the decision of the lower courts in exactly the manner in which they are meant to. Their arguments as to why a certified meaning of sex in the Equality Act would be confused and incoherent are set out in some detail in paragraphs 216 onward.
For those who disagree with the ruling, there are three courses of action open. The first is to borrow from the playbook of Donald Trump and denounce the judiciary, the courts and the wider establishment. That Maggie Chapman MSP would be one of those leading this Trumpian effort is not entirely surprising.

Shouting to the faithful in Aberdeen, she told them what they wanted to hear: “And we say, ‘not in our name’ to the bigotry, prejudice and hatred that we see coming from the Supreme Court.” She then travelled down the road to Dundee to condemn the judgment as a “disgrace” whilst introducing speakers who, among other things, claimed that “without trans women there is no point in womanhood; without those who choose to be a woman, womanhood becomes a prison”. All of this will play well in her leadership ambitions of the Scottish Green Party.

The second course of action for those who disagree with the ruling is to set out how Lord Reed and his colleagues got their decision wrong by applying the rules of statutory interpretation incorrectly or erring further on a point of law. I have seen no such critique.

The third (and most productive) course of action is to set out how the law should be amended to accommodate whatever criticism one has about its current meaning. I have seen no such efforts in this direction either.

Unfortunately, the postures struck by too many politicians over the past few years have frustrated attempts to follow this third course of action as the law in this area has frequently been misrepresented and practice has not followed it.

When Patrick Harvie claimed in a Sky News interview in 2021 that trans women are women as a matter of law, he was wrong even before the recent Supreme Court on For Women Scotland v Scottish Ministers. The correct legal position was (and is) that trans people in possession of gender recognition certificates are their acquired sex for certain purposes but not for all.

This is the kind of confused and wishful thinking that has forestalled a calm and reasoned debate of gender recognition reform. In attending meetings to seek answers myself to some of these questions, I and others were castigated and called bigots and transphobes. Ultimately, the cause of trans people and their rights have been undermined by the manner in which far too many people in positions of power have adopted uncritical slogans and wishful thinking.

The rule of law is the bedrock of most democracies. It provides rules by which we can all live in relative harmony with each other, provides sanctions for criminal conduct, and promotes human rights by allowing citizens recourse to the courts to assert their rights.

The rule of law means that parliament should respect the judicial branch of government, whilst at the same the judiciary should respect the right of parliament to enact laws on behalf of the electorate.

Just as this Supreme Court decision deserves to be respected, so too does the democratic will of the Scottish Parliament. MSPs passed the Gender Recognition Reform (Scotland) Bill by 86 votes to 39. The bill currently sits on the desk of the presiding officer but a Section 35 order issued by the UK Government prevents her from submitting the bill for royal assent.

Since the substantive basis for that Section 35 order (the impact of the bill on the operation of the Equality Act 2010) no longer applies, the UK Government has a duty to reconsider the continuing validity of the order. If it fails to do so, a legal challenge may compel it to.

Either way, if there is no lawful impediment to sending the bill for royal assent, then Presiding Officer Alison Johnstone must do her duty, and the bill may well become law just in time for the 2026 Scottish parliamentary election. Scottish ministers may have no plans to reconsider the bill, but they are powerless as to whether it becomes law in its current form or not.