VITRIOL greeted the Scottish Parliament’s voting down of an amendment to the Gender Recognition Reform Bill, proposed by Tory MSP Russell Findlay, which sought to ban anyone convicted of a sexual offence from changing their gender.
The result of the vote – which saw the amendment defeated by 59 votes to 64 – saw gender critical activists evicted from the chamber after shouting “shame on all of you” from the public gallery.
Later, “The Disgraces of Scotland” began trending on Twitter thanks to one controversial blogger who, in a post shared by Conservative MSP Murdo Fraser, labelled the MSPs who had voted against Findlay’s amendment “rape-enabling misogynist scum”.
But mention of another amendment which MSPs resoundingly backed – and which has “the same effect” as Findlay’s would have – has been conspicuous in its absence from the outraged commentary.
“Russell Findlay wanted to ban people from applying [for a Gender Recognition Certificate], that’s not competent. It’s against the European Convention on Human Rights,” Gillian Martin, the MSP who proposed that overlooked amendment, told The National. “My approach is to do the same but in a way that is competent.”
Rather than applying an outright ban blocking anyone convicted of a sexual offence from changing their gender, Martin’s amendment means authorities will be able to assess risk and block GRC applications on a case-by-case basis.
My GRR amendments allowing Police Scotland to stop sex offenders gaining a GRC on the basis of RISK have just PASSED. They are competent, in line with EHRC, supported cross party, and will prevent harm. GRCs are for trans people, NOT predatory men.
— Gillian Martin (@GillianMSP) December 20, 2022
“If [Findlay’s] amendment had gone through and the bill had passed, it would probably get thrown out in court when challenged. It just wouldn’t be legally competent,” Martin said.
This is not something of which the Tory MSP is unaware. Social Justice Secretary Shona Robison (below) said in the Holyrood chamber: “Russell Findlay would acknowledge that I was very clear with him and others when I thought that amendments were outwith the competence of the Parliament or in breach of the ECHR.”
If the Tory MSP's amendment had passed, the entirety of the GRR bill was at risk of being struck down by the courts. That is, Martin said, the “key difference” between her amendment and his.
“It’s the same effect, but competent,” she told The National. “It’s done in a way that uses existing police powers, existing risk assessment processes, but the difference is that they now trigger the ability to deny a person a GRC.
“Another thing which is really important to know is that my amendments – and the government’s changes to my amendments – mean that in terms of risk and mitigating risk, our process is now stronger than the current UK process.
“At the moment we have gender recognition panels, they have to have a diagnosis of gender dysphoria and have to have proof of a person living in a gender for two years, but they do not do a risk assessment, they cannot deny a person a GRC on the basis of risk. They do not even look into the fact that a person might be on the sex offenders register.
“What we did is, for the first time, effectively made it possible for a GRC to be denied to a person on the basis of risk, and that is stronger than the current system that we have.”
A second amendment, which was struck down by the Parliament after the Presiding Officer cast the deciding vote on a 61-61 tie, has also caused a stir.
My amendment to pause an application for a GRC for those charged with rape or sexual assault a tie at 61 yes, 61 no but defeated by the casting vote of the Presiding Officer. #GRRBill
— Michelle Thomson (@MichelleThomson) December 20, 2022
Introduced by SNP MSP Michelle Thomson, this sought to put a hold on any application for a GRC made by somebody charged with rape or sexual assault.
After the amendment fell, the Scottish Tories claimed that the SNP had voted “to allow sex criminals to change gender”. Findlay added that opposing Thomson’s amendment was a “bizarre decision” – but it risked falling into the same trap as his.
Social Justice Secretary Robison told the Holyrood chamber: “I sympathise with what her amendment seeks to achieve, and anyone who heard Michelle Thomson’s testimony could not fail to be moved. However, we consider that there is a significant risk of the amendment being incompatible with the ECHR and, as such, outwith legislative competence.”
Instead, the Government moved a series of amendments (40A-E) to Martin’s amendment (40) which would have the same overall impact as Thomson’s proposal, but without the risk of breaching the ECHR.
In the end, between 118 and 120 of the 129 total MSPs backed every one of the Government’s amendments 40A through E. In turn, Martin’s amendment 40 was passed by 121 votes to zero.
“It’s a very polarised debate and we have different positions on it, but my amendments actually brought the Chamber together,” the SNP MSP told The National.
Green MSP Maggie Chapman (above) said that some of the proposed amendments had been “cynical and shameful dog whistles and scaremongering attempts that implied trans people are predators or a threat to others”.
She went on: "We could never support any amendment that did that or any amendment that could cause the legal competence of the entire bill to be called into question. We do not want the implementation of this bill to be delayed. Some of the amendments we have to discuss fail on both of those fronts.
"Gillian Martin's approach allows us to use existing procedures and systems to risk assess applications for GRCs in a way that is consistent with our broader human rights commitments and respect for people's right to privacy.”
The debate on the GRR bill at Holyrood is predicted to last late into the evening on Wednesday, but it is ultimately expected to pass with cross-party support.
