The Scottish Government’s clumsy attempts to reform the Gender Recognition Act have inadvertently opened a hornet’s nest
It’s been one hell of a year. But nothing quite defines how bonkers it’s been than in the case of a Canadian transgender woman taking beauticians to court for refusing to wax her balls.
That alone should be enough to make anyone take stock of where the debate about the reform of our laws around gender recognition has gone awry, but it has become so inflamed that the Scottish Government has pressed pause on its plans for legislative change.
Jessica Yaniv is a toxic individual who complained to the human rights tribunal in British Columbia because a series of female beauticians refused to wax her.
You might have considered her 16 complaints would have been immediately thrown out on common sense grounds. But not in British Columbia, where rules around gender self-identification are more advanced than our own. And indeed, are held up by some as an example of “best practice”.
Yaniv raised her legal case on the principle that it is her human right as a woman, because that is how she identifies, to expect any service offered to any other woman to be given to her, even though she has a penis.
The beauticians who are, in the main, immigrant women, some working on their own, from home, have had their livelihoods threatened by this ridiculous but seminal legal case. At least one has already gone out of business.
These are women likely to have suffered years of discrimination themselves by dint of their backgrounds – Yaniv herself has called immigrants not the “cleanest of people”.
Yet, they have been labelled transphobes and victimised by an ideology set within a legal framework which dictates that in terms of human rights, gender self-identity trumps biology, even in a business that is so fundamentally based around the human anatomy as getting a Brazilian.
Yaniv has argued that if you are a woman who is uncomfortable working with a penis then you are automatically a “transphobic bigot…committing a hate crime”.
And that principle has its Scottish fans.
Indeed, I spent a good hour and a half discussing this case and more with a prominent MP who argued that the Yaniv case illustrated the discrimination transgender women face every day.
Scottish Greens co-leader Patrick Harvie has claimed the Scottish Parliament had become a platform for transphobic hatred for allowing Canadian feminist Meghan Murphy, who was thrown off Twitter for ‘misgendering’ Yaniv, to speak there.
Conversely, one of Holyrood’s most thoughtful politicians, Green MSP Andy Wightman, was vilified by his own party and made to publicly apologise for attending a university event on sex-based rights simply because the lesbian feminist Julie Bindel was on the platform. Bindel, like Murphy, has been branded a transphobe for daring to question the current orthodoxy around self-ID.
Wightman was left in no doubt that he could be thrown out of the Greens for the crime, it would appear, of educating himself.
Meanwhile, Green party candidate and former co-convener Maggie Chapman has asserted on TV that sex is not binary, when even the most basic of biology textbooks will show that it is.
But bollocks to all that.
Science, facts and evidence should matter to us all, and when doctors raise concerns about the untested side-effects of puberty blockers on the development of the brain and bone density of transgender children, they should not be dismissed as transphobes.
This polarising debate, under the not-to-be-questioned mantra of ‘trans women are women’, was sparked by issues relating to the reform of the census and the Gender Recognition Act but has widened to encompass all kinds of arguments about gender, sex and identity.
And when legitimate questioning about legislative changes are dismissed as bigotry, the only people who are seeing a threat to their existing rights in law are biological women.
This is not some orchestrated attempt to create a moral panic about trans people’s right to live the life they want. People’s identity is not, and should not, be up for debate, but the legal process around gender ID and how it is shaped is. To deny there are consequences of changes to the GRA and how it interacts with sex discrimination and equality legislation, is to ignore the facts.
The GRA needs reform, but the Scottish Government’s clumsy attempts to do so has inadvertently opened a hornet’s nest about the mission creep that has seen sex and gender conflated when it comes to policy, practice and language.
And while it may be news to the Greens, sex is binary while gender is multifaceted and joyously fluid.
And why does that matter?
It matters because, as Edinburgh University academics Lucy Hunter Blackburn and Dr Kath Murray point out in their recent paper, ignoring the differences puts women and girls at risk. And to deny the relevance of biology when considering sexual inequality and policy provision is a mistake for both trans women and biological women.
I have struggled with this for the last year, tested my own prejudices and questioned accepted wisdom, but there remains one uncomfortable fact: trans women are trans women. And while that should be celebrated, if a male-bodied person can claim the legal rights of a woman by virtue of simple assertion, as the Yaniv case attests, there will be negative consequences in law for some women and girls and that risk – real or otherwise – cannot simply be ignored as the scaremongering of bigots.
It may be at the extreme, and Yaniv has done nothing to advance the case of ordinary trans women - indeed, quite the opposite - but that the law is even testing whether any woman should be forced to touch someone’s penis in the name of equality, could set a worrying precedent and traduce the years that the women’s movement spent arguing for women’s right to say ‘no’. For some, that concept is so absurd that this is where this debate should end. Yet it feels like in Scotland, it is just at the start.