A Critical Analysis of the Scottish Government's Draft Gender Recognition Reform (Scotland) Bill and its Adherence to the UN Convention on the Elimination of All Forms of Discrimination against Women
| Pages | 56-71 |
| Date | 01 October 2022 |
| Published date | 01 October 2022 |
| Author | Esther Hodges |
56
Cambridge Law Review (2022) Vol VII, Issue 2
Cambridge Law Review (2022) Vol VII, Issue 2, 56–71
A Critical Analysis of the Scottish
Government’s Draft Gender Recognition
Reform (Scotland) Bill and its Adherence to
the UN Convention on the Elimination of All
Forms of Discrimination against Women
ESTHER HODGES
ABSTRACT
In March 2022, the Scottish government introduced the draft Gender Recognition
Reform (Scotland) Bill. The draft Bill aims to streamline the process for those
seeking to obtain a Gender Recognition Certificate and so amend the sex on their
birth certificate to the gender with which they identify. Its proposed reforms have
attracted significant opposition from some. Drawing on qualitative analysis of
submissions to the draft Bill’s second public consultation, this article argues that
opposition is typically based on a reductive, classical sociological conceptualisation
of gender, which understands gender as an immutable binary ordained by nature
and contends that trans women are not women. By making it easier for trans
women to gain legal recognition for the gender with which they identify, those
opposing the draft Bill on these grounds therefore argue that its reforms put the
rights and freedoms of cis women at risk. This article explores this contention by
critically analysing the draft Bill’s adherence to the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW). Setting analysis against
a framework of two of the CEDAW’s most relevant articles and its General
Recommendation 28, it argues that the draft Bill is demonstrably in adh erence
with CEDAW because of its efforts to reduce discrimination against trans women
through means which in no way increase the risk of discrimination against cis
women. Drawing on postmodernism, this article elucidates a progressive
conceptualisation of gender which contends it is not fixed. It argues the draft Bill,
LLM Human Rights candidate (University of Edinburgh), MSc (SOAS), BA Hons (Oxon).
The Scottish Government’s Draft Gender Recognition Reform (Scotland) Bill
57
and indeed CEDAW, could go further in their efforts to reduce discrimination
faced by trans women by reducing their evidential reliance on binary
conceptualisations of gender. In so doing, they could encourage greater femini st
and queer coalitional work, discouraging efforts to pit women’s rights against those
of trans people to support the emancipation of all women.
Keywords: CEDAW; gender recognition; postmodernism; trans rights; women’s rights
I. INTRODUCTION
Introducing the draft Gender Recognition Reform (Scotland) Bill (“the draft Bill”)
to the Scottish Parliament on 3 March 2022, Cabinet Secretary Shona Robison said,
“We are committed to advancing equality for women and protecting women’s
rights. T hat commitment is not affected by our support for trans rights.”
1
The
draft Bill of which she spoke aims to streamline the process for those seeking to
obtain a Gender Recognition Certificate (GRC) and so amend the sex on their birth
certificate to the gender with which they identify.
2
Those in favour of the draft Bill
contend that it improves rights recognition and reduces discrimination for trans
people, including trans women. Those in opposition argue that it puts the rights
and equality of cis women at risk.
3
In Scotland, as in other parts of the United
Kingdom (UK), this debate is contentious and highly polarised. Those advancing
the draft Bill evidence cognisance of this fact, and of the competing views, as
Robison’s words attest.
Given the relevance of the debate to efforts to reduce discrimination against
women—trans and cis—this article’s contribution is to analyse the extent of the
draft Bill’s adherence to the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW). Conducting this analysis, I argue that
the draft Bill is in adherence with CEDAW becaus e of its ambition to reduce
discrimination faced by trans women through means which in no way increase the
risk of discrimination against cis women. Drawing on postmodernism, however, I
will contend that it does not go far enough in this attempt because its
conceptualisation of gender is socially constructionist, and thus tacitly
acknowledges the role of biological determinism. As such, it renders an
opportunity for anti-trans movements to challenge the draft Bill on the grounds
that trans women are not “real” women and reduces the opportunity for
1
Shona Robison, words recorded in ‘Official Report Draft: Meeting of the Parliament (Hyb rid)’, Session 6, The
Scottish Parliament (3 March 2022) 65–66.
2
Scottish Government, ‘Gender Recognition Reform Bill’ (Scottish Government)
3
“Cis” refers to people who live in the gender which is the same as the sex that was assigned at birth.
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