Advertisement

Scotland’s gender reform plans ‘offer no safeguards against transgender predators’

Protesters supporting women's rights demonstrate outside the Scottish Parliament at Holyrood in Edinburgh - Alamy
Protesters supporting women's rights demonstrate outside the Scottish Parliament at Holyrood in Edinburgh - Alamy

Nicola Sturgeon’s gender reforms contain “nothing” to stop predators like transgender rapist Isla Bryson from “terrifying” services into giving them access to women’s safe spaces, one of Britain’s most eminent discrimination lawyers has warned.

Naomi Cunningham, a barrister specialising in gender reassignment discrimination, said the self-identification system proposed by the Scottish government had no safeguards to prevent predatory men from obtaining a gender recognition certificate (GRC).

She told the Commons Women and Equalities Committee that people “like Isla Bryson” could then use their certificate “to terrify services that might want to say no” to get into their women-only spaces.

Although Ms Cunningham agreed that a GRC was “not an access-all-areas pass”, she told MPs it is complicated for service providers to deny holders entry to women-only spaces, especially those that cannot afford to take legal advice.

Ms Cunningham said they may feel they have to “give way” to predatory males so they are not sued, even if this leads to their female clientele choosing to stay away.

‘No mechanisms to assess validity of GRC applications’

Dr Michael Foran, a lecturer in public law from Glasgow University, also warned the Gender Recognition Reform Bill would make it “next to impossible” to bring a criminal prosecution against a man making a false declaration he was a woman.

He told the committee there were “no mechanisms” in the legislation, which has been blocked by the UK Government, for even assessing whether an application for a GRC was fraudulent.

Bryson was last week convicted of two rapes and sent to Cornton Vale women’s prison, in line with Scottish Prison Service (SPS) guidance stating that trans criminals should be sent to the jail that matches their self-identified gender.

The 31-year-old was named Adam Graham when committing the rapes and has not legally changed gender. Following a huge public outcry, the rapist was moved to a men’s cell in Edinburgh’s Saughton jail.

It emerged last weekend that Bryson signed up for a beauty skills course at Ayrshire College while awaiting trial and young female students stripped off in front of the rapist for spray tan sessions.

The expert warnings came as Ms Sturgeon was accused of hiding from the Scottish Parliament over the Bryson scandal after refusing to make a statement to MSPs.

Keith Brown, her Justice Secretary, instead took questions on his decision on Sunday to ban the SPS from sending any more violent transgender offenders to female prisons. The dramatic U-turn came after he had previously refused to intervene.

‘Sturgeon created obscene situation’

But Russell Findlay, the Scottish Tories’ Shadow Community Safety Minister, said Ms Sturgeon “created the obscene situation in which a double rapist was sent inside a woman’s prison. She should be here to answer questions about this mess, which is entirely of her own making”.

Ms Sturgeon has been accused of making up “policy on the hoof” after stating that Bryson is a woman but the rapist had “no automatic right” to be sent to a female jail.

She and Mr Brown have also argued the Bill was irrelevant to the scandal as it was not in force and the SPS placed more emphasis on risk assessments than GRCs when deciding where to place inmates.

The legislation would allow people born or resident in Scotland aged over 16 to change their legal sex simply by signing a statutory declaration, removing the need for a medical diagnosis of gender dysphoria.

But the UK Government’s 13-page statement of reasons for its veto warned “traumatised” women could quit female-only clubs and sports after encountering people who have quickly changed their legal gender.

Ms Cunningham, of Outer Temple Chambers, specialises in cases involving the Equality Act and is chair of the third sector human rights organisation Sex Matters.

She told the committee: “The problem is that there is nothing in the process proposed to stop predatory men like Isla Bryson from getting a GRC and using it to terrify services that might want to say no, this is a women-only space...

“On any view, it makes it more complex for service providers or for people like the beauty training course that Isla Bryson went on, it makes it more difficult for them to say no, this is for women only, or no, you’re not allowed to partner with a young female classmate in order to apply fake tan to her in the most intimate way.”

“Because he’s got this magic certificate that says (a) he’s a woman and (b) nobody’s allowed to mention the fact that he’s really a man.”

Isla Bryson outside the High Court in Glasgow - PA
Isla Bryson outside the High Court in Glasgow - PA

She said it was “very simple” to deny someone access to a women’s safe space if they are legally male but “the situation is very different” if they have a GRC as it could be “gender reassignment discrimination” under the law.

Arguing that this was “pretty daunting” for an organisation, especially if they are small, Ms Cunningham said they may think “they’ve got to give way and let them in, even if that means that their core users simply self-exclude”.

Although she acknowledged some of these problems already exist under the current gender recognition system, she said they would be made “very much worse” by the Bill as it would increase the number of people being awarded GRCs.

The legislation would lower the time period in which someone must live in their “acquired gender” from two years six months and allow 16 and 17-year-olds to change gender.

Ms Cunningham and Dr Foran repeatedly clashed with Lord Falconer of Thoroton, who served as Lord Chancellor and Justice Secretary in Tony Blair’s government.

He claimed having a GRC would make no difference to whether someone who was biologically male could access women-only spaces but Dr Foran insisted it would be a “relevant factor”.

Arguing that “it changes whether or not you can sue”, he said: “You could introduce a policy that bans all males from female prisons if you want but you could be sued for that. You could be sued for gender recognition discrimination.”

He said the policy could be “struck down as unlawful” if the courts concluded there was a “less onerous way to achieve the legitimate aim of providing security”.

But Mr Brown told Holyrood the SPS’s self-ID policy had been in place since 2014, was subject to a risk assessment and had not been “impacted” by the Bill. Despite the Bryson scandal, he added: “I do support the principle of gender self-ID.”

He said: “The decision to initially accommodate this prisoner in HMP Cornton Vale, while the risk assessment was done, was made without ministerial involvement, nor indeed awareness, and in line with existing procedures.”

‘Defending the indefensible’

But Mr Findlay said: “Keith Brown defended the indefensible before being thrown under the bus by Nicola Sturgeon. How can we have any confidence in anything he says here today, when it can be trashed in 24 hours?”

George Adam, the Parliamentary Business Minister, argued it was for Mr Brown as Justice Secretary rather than Ms Sturgeon to make the parliamentary statement.

Mr Findlay’s motion for the First Minister to do so was defeated by 51 votes to 67, with Tory, Labour and Liberal Democrat MSPs supporting it and SNP and Green MSPs opposing it.