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The National (Scotland)
The National (Scotland)
Hamish Morrison

Labour peer told to 'be polite' after interrupting woman in trans committee

A LABOUR peer was told to “be polite” after speaking over a woman while discussing the Scottish Government’s transgender law reforms.

Lord Falconer KC, a former justice secretary under Tony Blair, attempted to interrupt barrister Naomi Cunningham, who is also the chair of the pressure group Sex Matters during a meeting of the Westminster equalities committee.

He was reprimanded by committee chair and Tory MP Caroline Noakes, who told him: “Can we please be polite to other witnesses, thank you, Lord Falconer?”

GRC fears raised 

The reprimand came as Cunningham argued that the possession of a gender recognition certificate complicated matters when it came to organisations denying access the access of trans people to single-sex spaces.

She claimed the Scottish Government’s planned reforms – which were blocked from becoming law by the UK Government, despite cross-party support in the Scottish Parliament – would result in women choosing to “self-exclude” from female-only spaces if males with GRCs were allowed in without question.

She said that because under the Equalities Act, single-sex spaces were allowed to discriminate based on sex – but that the Scottish Government’s reforms would mean a trans woman (who had been born a man) would be able to claim discriminate were she to be denied access.

Cunningham, who described herself as a discrimination lawyer of “some horrible number of years’ experience”, said this could result in women choosing not to use single-sex spaces because of the relaxed rules around obtaining a GRC put forward by the Scottish Government.

She told the committee: “The problem comes when a service provider or public authority or whatever tries to, wants to do the right thing and provide a single-sex service when it’s necessary and is faced with a man who identifies as a woman who says, ‘That’s not lawful, you’re discriminating against me’.

“If he doesn’t have a gender recognition certificate, the answer is very plain and simple. The answer is: ‘Sorry, you’re a man. As far as the law is concerned, you’re a man. You don’t have a gender recognition certificate, you’re legally male. So, this is a women-only space, a women-only service, whatever – you can’t come in.’

“And that is a flat, simple answer and that’s easy. And that’s easy for any little service provider to operate.

“If that same man has a gender recognition certificate, declaring him to be a woman, the situation is very different – at that point, it’s no longer sex discrimination, which is by definition permitted if this is a lawful single-sex space or service, it becomes gender-reassignment discrimination and then it has to be specifically justified.

“And we can argue about whether that is necessarily case-by-case or policy-by-policy but it’s more complicated. The legal route is more complicated and that for a small organisation especially… is pretty daunting.

“They need to go off and take legal advice, they probably can’t afford it, they don’t really understand what the issues are.

“They may well think, faced with a man saying, ‘My birth certificate says I’m a woman’, means they’ve just got to give way and let him in, even if that means that their core users simply self-exclude.”

'Complete academic nonsense' 

Lord Falconer, who has previously argued against Alister Jack pulling the trigger on Section 35 to prevent the Scottish bill from becoming law, told MPs that the legal implications of the reforms were simpler than Cunningham was making out.

He argued that a GRC changing whether a dangerous transgender prisoner into a female prison – as in the case of Isla Bryson, who it’s understood did not possess a GRC – was “complete academic nonsense”.

Lord Falconer said: “Suppose you were the prison minister, as I was, in this in relation to this. You’ve got to address this on a factual basis – doesn’t matter whether you’ve got a gender recognition certificate or not – you’ve got to work out whether it’s safe for somebody and that is exactly the way the courts will approach it.

“This idea that the GRC is going to make the difference is complete academic nonsense.

“The prison minister has got to address himself to the question, ‘What’s the basis on which I let somebody into the female estate, if they are a trans woman?’

“And the recent case in Scotland indicates you never let somebody in those circumstances in.”

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