02.02.2023

Devolution non-recognition

UK government uses the Gender Recognition Reform (Scotland) Bill as an excuse to assert ministers’ right to micro-manage Holyrood legislation for Tory electoral advantage. Mike Macnair explores the issues

On January 18 the Tory government laid before parliament ‘The Gender Recognition Reform (Scotland) Bill (Prohibition on Submission for Royal Assent) Order 2023’ - an order made the evening before by the secretary of state for Scotland, Alister Jack, under section 35 (1) (b) of the Scotland Act 1998.¹ This prohibits the submission for royal assent of the Gender Recognition Reform (Scotland) Bill 2022, which passed its final stages in the Scottish parliament on December 22.

On January 25, Shona Robison, as cabinet secretary for social justice, housing and local government in the Scottish government, wrote to Jack expressing disappointment that he was unwilling to hear reasons for the Scottish parliament’s vote for the bill or to negotiate in good faith.² The next step is presumably litigation: an order by a minister is not, unlike an act of the UK parliament, sovereign legislation, but amenable to judicial review, and Robison’s letter reports that Jack offered (to paraphrase) ‘see you in court’ as one of the options open to her.

Courts

The Scottish parliament cannot really expect to win in the courts. Suppose for the sake of argument that the courts were concerned to uphold the sovereignty of (the UK) parliament, as opposed to the sovereignty of ministers backed by the press barons - as they at least ostensibly were in Gina Miller’s two Brexit cases. In this case they would strike down Jack’s order as not made in good faith, but in bad faith, with the ulterior purpose of using the power under the Scotland Act to undermine the power of the Scottish parliament to make any legislation.

The ‘reasons’ offered in Jack’s order concern indirect effects of the Scottish legislation on ‘reserved matters’ that have to be decided in the UK parliament, these being specified in the ‘reasons’ as social security budgetary matters, and the provisions of the Equality Act 2010. No attempt is made in the statement of reasons in Jack’s order to quantify what these indirect effects would be and, given the small absolute numbers of applicants for gender recognition certificates, they should be assumed to be trivial. Certainly, they should be substantially less than the indirect effects on these ‘reserved matters’ of the differences that already exist between English and Scottish marital property and divorce laws.

If trivial indirect effects on UK‑wide policy on ‘reserved matters’ are a ground for striking down legislation of the Scottish parliament, then any such legislation can be struck down at the whim of the secretary of state. This would amount to the overthrow of Scottish devolution by ministerial order without the UK parliament having a chance to vote on the repeal of the Scotland Act.

However, the courts do not and cannot ignore political context in taking decisions. In the first place, what makes them courts, rather than private arbitrators, is the fact that their decisions will be enforced: in criminal cases by the police; in civil cases by sheriff’s bailiffs, backed if necessary by the police; and in both cases backed in the last resort, if necessary, by the army. For courts to reach decisions that will undermine the coherence and authority of the bureaucratic-coercive state is therefore against their interests (leave aside that the state pays the judges). In the present case, striking down Jack’s order might undermine state coherence, though it is fairly remote. Upholding it pretty certainly will not lead to a constitutional crisis, for political reasons I will discuss below.

Secondly, in immediate politics, when the judges failed to jail Paul Dacre for contempt of court for the November 2016 ‘enemies of the people’ headline, they made the strongest possible precedent for a constitutional convention that the judiciary is subordinate to the press barons and not the other way round. And partly as a result (there is also an effect of recent senior judicial appointments feeding through) the UK Supreme Court is currently famously more Conservative (capital C intended) and more deferential to the executive than it was earlier.³ In the present case, Gender Recognition Act reform would be politically a lousy topic for the judges to choose to pick a fight with the UK Tory government and the press barons.

So, even though there would be a plausible legal case for quashing Jack’s order as an abuse of the powers of the UK government under the Scotland Act, it is actually, politically, seriously unlikely that the courts will do it - though it is not completely impossible, and the government may have to wait for the case to drag its way to UKSC to get its victory.

SNP

It is also politically a lousy topic for the Scottish National Party to try to fight the UK government on; which, in turn, is why the Tories have chosen this topic as the entering wedge for their attack on devolution.

As to why it is politically a lousy topic, an immediate and superficial answer was given to us by the very quick sequel to Jack’s order (no doubt prepared in advance by their press friends in consultation with the Tory leadership): high-profile media reports of a convicted rapist who has decided to change sex, Isla Bryson (formerly called Adam Graham), being placed in a women’s prison, and then of Tiffany Scott (formerly called Andrew Burns), subject to an indeterminate sentence after conviction for stalking a 13-year-old girl, who had decided to transition and applied for transfer to a women’s prison.

The Scottish government has been forced into an abrupt ‘U-turn’ on trans prisoners - though the numbers are actually very small: as of last September, the Herald reports,

… there are 15 transgender prisoners in custody, 11 transwomen and four transgender men. Of the 11 transwomen six are in male prisons and five in women’s prisons. Of the four transgender men, three are in women’s prisons while one is in a male prison.⁴

This among a Scottish prison population of 7,500 (96% male).⁵ Small numbers - just under 0.2% of the total or two per thousand; but big media coverage and a rapid SNP retreat.

Feminist opponents of ‘gender recognition’ may be tempted to treat the Scottish trans prisoners issue as an ‘I told you so’. They should pause to think that the press technique used in these stories is identical to the Tory press giving excessive prominence to the microscopic numbers of false allegations of rape, with a view to spreading the idea among lawyers and jurors that such false allegations are much more common than they actually are, and hence making convictions of rape extraordinarily difficult.

If we ask why the Scottish government decided to fight the Tories on the ‘gender recognition’ issue, the answer is that probably, in the first place, they did not intend to pick a fight on the issue and, secondly, to the extent that they did, they imagined that the Tories would be divided on it.

After all, their bill is modelled on proposals for reform of the Gender Recognition Act (GRA) for the UK parliament on the initial recommendation of Theresa May as prime minister in 2017. It has been (not unreasonably) suggested that May hoped to follow David Cameron’s success in using gay marriage to present the Tories as ‘no longer the nasty party’.⁶ While it might be imagined that May was setting a trap, as Cameron set traps for Labour with the 2014 Indyref and 2016 Brexit referendum, the fact that May waffled one way and another on the issue in late December 2022 suggests that she was genuine in her support for de-medicalising ‘gender recognition’ in 2017-18.⁷

The SNP government may, thus, have genuinely believed that the issue would not be that controversial, and/or that the Tories would be split on the issue and hence unable to mobilise an effective culture-wars polemic against them; meanwhile, the Scottish government would display its forward-looking, liberal anti-discrimination credentials.

If so, they were guilty of what Marx and subsequent Marxist authors have called ‘parliamentary cretinism’. The Labour leadership was analogously guilty of this in the parliamentary manoeuvres over Brexit in 2017-18, where the ‘Tory remainers’ were able to pull in Labour support for their initiatives, but never willing to vote for Labour initiatives. ‘Parliamentary cretinism’ might be better called ‘parliamentary tunnel vision’ - the belief that manoeuvres in parliament are decisive, disregarding what is or is not happening outside parliament. In the case of the ‘Tory remainers’, Labour’s manoeuvres failed in their objective (to bring down the government), but succeeded in the outside world in tagging Labour as a party that sought to use parliamentary manoeuvres to prevent the implementation of the Brexit referendum (but without openly denouncing that referendum). They thus set up the political conditions for Johnson’s ‘get Brexit done’ election victory in 2019.

In relation to GRA reform, the Tories pulled Theresa May’s proposed GRA reform in 2020. At around the same period, the Tory press started a culture-wars offensive on this question, imitating the US Republican Party, and aiming to win Tory support among women ‘threatened’ by the microscopic number of male-to-female trans people. From this moment on, for the Scottish government to press on with May’s ideas was to place itself in an exposed salient that they would have considerable difficulty defending. Here, the ‘parliamentary cretinism’ is imagining that the Conservative Party, or any part of it, would act in good faith either about devolution (which it has always opposed, though keeping quiet about it until they found a good issue to attack it on) or about issues like GRA reform; and losing sight of the role of the press barons as an extra-parliamentary arm of the Tories.

Peak diversity

I said earlier that an “immediate and superficial answer” to why GRA reform was a good issue for the Tories and a bad one for the SNP to fight on was the media offensive round male-to-female trans prisoners being sent to women’s prisons. But the question that lies beneath this is: why is this an issue on which the Tories can expect to get public support for their witch-hunt, given the ascendancy of the ‘equality and diversity’ and ‘anti-discrimination’ narratives more generally? After all, the fraudulent ‘anti-Semitism’ witch-hunt - still continuing, for example, in the attack on the National Union of Students⁸ - is mounted in the name of ‘anti-racism’, and Tory leader of the Commons Penny Mordaunt has recently called on the Church of England to allow gay marriage in church.⁹ So why not trans rights as a ground for GRA reform?

Firstly, the ‘equality and diversity’ and ‘anti-discrimination’ agenda is probably at or past its peak. Right populism has been an increasingly prominent political trend, with Britain and the US coming late to the party with Brexit and Trump. (Political Islamism in the Middle East was early on the scene; Japanese historical revisionism and Hindutva nationalist were also fairly early arrivals; Putinism and Orbánism began in the early 2000s.) Explicit ‘white rights’ and ‘men’s rights’ arguments have been increasingly visible: they are code for white and male supremacism within the ‘anti-discrimination’ format. The Tory press are increasingly promoting explicit pro-imperialist arguments about the history of the British empire and denouncing critical views as ‘woke’ - notably presenting academic criticisms of Nigel Biggar’s arguments on this front as ‘censorship’.¹⁰

This peaking has happened, as I have argued before,¹¹ because the ‘equality and diversity’ and ‘anti-discrimination’ agenda has been - since the 1970s and the turn of the US military to anti-discrimination in the wake of its race problem in Vietnam - a pro-capitalist agenda. The left has tied itself to ‘intersectional’, multiple, single-issue anti-discrimination campaigns in solidarity with liberal capitalists, and subordinated raising issues of class, and of socialist collective provision, to the ‘needs’ of these alliances.

The result of this rainbow alliance with Wall Street is that the questions of economic inequality and insecurity, and social solidarity as an alternative to them, become the property of the nationalist and patriarchalist right. This in turn produces ‘Vote Clinton, get Trump’ - and as a result a US Supreme Court controlled by the ultra-right, which promotes male supremacism: so that the anti-discrimination agenda proves to be self-defeating (except for capital, which wins whether it rules through corrupt liberals or corrupt conservatives).

The way out of this trap is not to abandon the general agenda of “the emancipation of all human beings without distinction of sex or race” - as it is put in the Programme of the Parti Ouvrier that Marx helped to draft in 1880,¹² but which now needs to be read to include disabilities, sexuality and gender identity, nationality and religious belief.¹³ It is rather to remember the rest of the formula:

That the emancipation of the productive class is that of all human beings without distinction of sex or race;

That the producers can be free only when they are in possession of the means of production (land, factories, ships, banks, credit);

That there are only two forms under which the means of production can belong to them:

(1) The individual form, which has never existed in a general state and which is increasingly eliminated by industrial progress;

(2) The collective form, the material and intellectual elements of which are constituted by the very development of capitalist society;

Considering:

That this collective appropriation can arise only from the revolutionary action of the productive class - or proletariat - organised in a distinct political party;

That such an organisation must be pursued by all the means the proletariat has at its disposal, including universal suffrage, which will thus be transformed from the instrument of deception that it has been until now into an instrument of emancipation …

Recognising that argument means that we need to break with the self-defeating people’s front conception in which the interests of the proletariat and the struggle for socialism have to be subordinated for the sake of an alliance with liberals (or nationalists) - or subordinated to the post-1970s anti-discrimination agenda.

Moreover, what we seek is emancipation, in the direction of “from each according to their ability, to each according to their needs,” not ‘anti-discrimination’ “equality to compete” - for reasons argued, following the old traditions of the socialist movement, in this paper two weeks ago.¹⁴ We need to work out an agenda for the workers’ movement on these issues: not to tail whatever happens to be fashionable among some section of capitalist politicians, or of groups of the oppressed themselves. To adopt the policy of programmatic tailism, whether in the name of a people’s front or broad front, of intersectionality or of the ‘transitional method’, is to be drawn into traps set by capital’s political managers.

Trap

In this context, the ‘GRA reform’ model proposed by Theresa May and adopted by the Scottish government is such a trap. I said earlier that May’s comments in December 2022 suggest that she probably did not intend it as a trap in 2017. It is, nonetheless, a trap in effect.

The reason for this is that the ‘GRA reform’ model treats the trans issue as a pure, single issue that can be ‘dealt with’ by permitting trans people to identify as female or male if that is their preferred gender. It does not allow intermediate gender identification or non-gender identification.¹⁵ This was already the shape of the existing Gender Recognition Act 2004, and persists in the Scottish bill, which would insert in the GRA 2004 for Scotland, “A person of either gender may apply to the registrar general for Scotland for a gender recognition certificate on the basis of living in the other gender …” Thus there are to be only two genders recognised.

This rigidity follows from the single-issue ‘trans rights’ approach. Precisely as a single-issue approach to ‘trans’, abstracted from the politics of sex and class, it leaves wholly intact the entire apparatus of the oppression of women, and with it forms of gender segregation created in the 19th century (notably in the case of public toilets).¹⁶

And with it, too, it leaves intact the associated ‘pacification of women’, which already by the later 19th century was turning women, in the eye of the criminal law, from potential ‘offenders’ into potential ‘victims’, as Nicola Lacey has shown, and which has visibly continued through the 20th century and into the 21st, reducing women in the prison population from 17% in 1900 to 4% today.¹⁷ This, in turn, entails the obsessive concern in child-rearing practices and popular advice to produce ‘femininity’ in young girls and ‘masculinity’ in young boys, which almost certainly bears on ‘trans issues’.

Leaving all this stuff intact, the GRA approach merely allows people who were born and raised as female to identify as male, and people who were born and raised as male to identify as female - if they make the appropriate application to ‘our benevolent masters’ in the bureaucratic-coercive state.

The consequence, however, is to set up a zero-sum conflict between the sub-group of male-to-female trans people, on the one hand, and ‘separate spaces’ or ‘safe spaces’ feminists - and probably much wider groups of women who may not be formal separatists or safe-spaces advocates - on the other.

Within the GRA single-issue framework, trans people can only be liberated by recognised membership of the single available, opposite-to-former, gender. The gendered structure of imprisonment, public toilets, etc, etc, means that permitting recognition only to post-operative trans people (and, as the GRA 2004 requires, requiring a period of medically supervised living as the opposite gender) is to require trans people during the transition to appear as women in men’s prisons or men in women’s prisons (whichever way you set up the rules). The likelihood of trans people - in either direction - being victimised in these circumstances is very high. Hence the proposal of GRA reform along the lines of May’s proposals and the Scottish government’s variants.

But then the ‘GRA reform’ model sets up a real issue of fraudulent applications with a view to personal advantage, for which the prisons issue is the central case. Transgender identification affects 1.4% of population in the USA; in the UK, according to the 2021 census, 0.5%.¹⁸ On the other hand, a 2021 literature meta-analysis identified the prevalence of psychopathy/sociopathy in the general population at 4.5% - a substantially larger figure; and figures among (male) prisoners are higher (one 2009 UK study found 7.7%).¹⁹

The absolute numbers are still small. But the relative numbers here mean that there is a real potential problem of fraudulent applications for gender recognition. It might be added that there is a special incentive for male sex offenders, who are likely to be victimised in men’s prisons and are held under special regimes, to make such applications.²⁰ To make these points is not transphobia in any sense: they are about non-trans people making fraudulent applications.

The Tories and their press are fraudulently exaggerating this risk (just as they do with the risk of false complaints of rape). This is both a matter of the small absolute numbers involved, and a converse matter: that single-sex prisons are not ‘safe spaces’ from the point of view of sexual assault. This is notorious of US prisons (if perhaps overstated in the pop-culture); but the numbers are quite serious in prisons in England and Wales.²¹

However, the fact that the Tories are exaggerating the risk of fraudulent gender recognition applications does not mean that it is a non-issue; or that it is likely to be perceived by the large mass of the voting public as a non-issue. On the contrary, the Scottish government’s rapid U-turn on trans prisoners shows that they thought they had no chance of defending the policy they had adopted in the ‘court of public opinion’.

This brings me back to my original point. GRA reform is a lousy issue for the Scottish government to fight the Tories on, and conversely a great issue for the Tories to use to sneak in a claim to radically undermine devolution by using trivial indirect effects of Scottish legislation on ‘reserved matters’, so as to give themselves a veto over any such legislation.

How to escape the trap? Unavoidably, I think this will require us to go a level below what I have been discussing in this article, in order to work out what might be a positive programmatic line in the interests of the working class and socialism on ‘trans questions’. That will have to be one that is not grounded on ‘trans’ as an independent single issue and/or on the politics of anti-discrimination and ‘rights’. I will begin to have a stab at this question in a future article.

mike.macnair@weeklyworker.co.uk

1. www.legislation.gov.uk/uksi/2023/41/contents/made.↩︎

2. www.gov.scot/publications/gender-recognition-letter-to-the-secretary-of-state-for-scotland-24-january-2023.↩︎

3. www.lrb.co.uk/the-paper/v44/n02/conor-gearty/in-the-shallow-end. See also ukconstitutionallaw.org/2022/04/04/lewis-graham-the-reed-court-by-numbers-how-shallow-is-the-shallow-end.↩︎

4. ‘Transgender rapist Isla Bryson moved to men’s prison’ BBC News January 27; ‘Tiffany Scott: call to block trans prisoner’s move to women’s jail’ BBC News January 29; ‘Call for Italian-style jail for trans prisoners, as FM faces new storm’ The Herald January 29.↩︎

5. www.gov.scot/news/scottish-prison-population-statistics-2021-22. In England and Wales there were 80,660 prisoners, similarly 4% female.↩︎

6. ‘Theresa May plans to let people change gender without medical checks’ The Guardian October 18 2017; C Madeleine, ‘What went wrong with the Gender Recognition Act?’ Dazed May 18 2022: www.dazeddigital.com/life-culture/article/56130/1/what-went-wrong-with-the-gender-recognition-act.↩︎

7. ‘Gender Recognition Reform Bill: Theresa May disappointed Scotland changes not considered for England’ Scotsman December 26 2022; ‘Theresa May denies supporting Holyrood’s gender reform’ The Times December 28 2022.↩︎

8. See Paul Demarty’s article last week: ‘Safe space for Zionism’ Weekly Worker January 26 (weeklyworker.co.uk/worker/1427/safe-space-for-zionism).↩︎

9. ‘Penny Mordaunt urges Church of England to allow gay marriage’ The Times January 16.↩︎

10. Umpteen web references can be found by googling ‘Biggar’. For academic criticism of the new pro-imperialist history see, for example, theconversation.com/ethics-and-empire-an-open-letter-from-oxford-scholars-89333; P Brandon and A Sarkar, ‘Labour history and the case against colonialism’ International Review of Social History Vol 64, pp74-109 (2019).↩︎

11. ‘Intersectionalism, the highest stage of western Stalinism?’ Critique Vol 46, pp541‑58 (2018). Less carefully referenced, but at more length, and with more polemic against the ‘economist’ or ‘class-only’ alternative project, is ‘Intersectionality is a dead end’, Weekly Worker June 7 2018 (weeklyworker.co.uk/worker/1206/intersectionality-is-a-dead-end). See also ‘Race and class’, June 21 2018 (weeklyworker.co.uk/worker/1208/race-and-class); ‘Mistaken versions of Maoism’ June 28 2018 (weeklyworker.co.uk/worker/1209/mistaken-versions-of-maoism); ‘Getting beyond capitalism’ July 5 2018 (weeklyworker.co.uk/worker/1210/getting-beyond-capitalism).↩︎

12. www.marxists.org/archive/marx/works/1880/05/parti-ouvrier.htm.↩︎

13. I deliberately exclude age. The ‘emancipation’ of infants, and of the high-dependency aged, is a delusional idea in the absence of a science-fictional post-humanism, which would pose all political issues differently; and compulsory retirement ages, apprenticeships and analogous ‘early career’ jobs, and certain other forms of age discrimination prohibited by the 2000 EU Directive and hence by British law, are positively favourable to general human emancipation.↩︎

14. ‘Not equality to compete’ Weekly Worker January 19 (weeklyworker.co.uk/worker/1426/not-equality-to-compete).↩︎

15. I owe this point to Alice Macnair, in conversation, though I have developed it in a somewhat different direction.↩︎

16. B Penner, ‘A world of unmentionable suffering: women’s public conveniences in Victorian London’ Journal of Design History Vol 14, pp35-51 (2001); TS Kogan, ‘Sex-separation in public restrooms: law, architecture, and gender’ Michigan Journal of Gender & Law Vol 14, pp1-57 (2007); R Baker, ‘Of moral reform and equal rights to respectable peeing’: thereader.mitpress.mit.edu/of-moral-reform-and-equal-rights-to-respectable-peeing. Analogously, women’s competitive sports were created late in the 19th and early in the 20th century on the basis of a prior exclusion of women from competitive sports.↩︎

17. N Lacey Women, crime and character: from Moll Flanders to Tess of the d’Urbervilles Oxford 2008. For the evolution of prison population by gender, see www.statista.com/statistics/283475/england-and-wales-prison-population-by-gender (what is mainly shown is the enormous growth of imprisonment of men). The present situation is discussed at www.gov.uk/government/statistics/women-and-the-criminal-justice-system-2021/women-and-the-criminal-justice-system-2021.↩︎

18. williamsinstitute.law.ucla.edu/publications/trans-adults-united-states (June 2022); www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/genderidentity/bulletins/genderidentityenglandandwales/census2021.↩︎

19. A Sanz-Garcia et al, ‘Prevalence of psychopathy in the general adult population: a systematic review and meta-analysis’ Frontiers in Psychology Vol 12 (2021): www.frontiersin.org/articles/10.3389/fpsyg.2021.661044/full, with important caveats on both concept and methods of the research reviewed. On male prisoners, see J Coid et al, ‘Psychopathy among prisoners in England and Wales’ International Journal of Law & Psychiatry Vol 32, pp134-41 (2009): pubmed.ncbi.nlm.nih.gov/19345418.↩︎

20. See, for instance, HM Prison and Probation Service, ‘The separated location of prisoners with sexual convictions: research on the benefits and risks’ (2018): assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/749149/separated-location-prisoners-with-sexual-convictions-report.pdf.↩︎

21. US: en.wikipedia.org/wiki/Prison_rape_in_the_United_States. UK: J Sondhi, S Hinks and H Smith, ‘Sexual assaults reported in prisons: exploratory findings from analysis of incident descriptions’, Ministry of Justice 2018: assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/737991/sexual-assaults-reported-prisons-exploratory-findings.pdf.↩︎