There seemed to be a clear direction of travel towards self-identification at Holyrood when Nicola Sturgeon’s government was pursuing gender reform legislation.
But that bill was blocked by UK ministers, and Humza Yousaf’s administration ultimately decided to drop its legal appeals against that controversial move.
John Swinney’s government frankly seems like it would just really rather not talk about issues of gender. But the first minister may have little choice when it comes to his weekly question session.
Language as well as policy seems to have shifted over the years.
The EHRC guidance cited by the government notes that the Equality Act uses the term “transsexual”, but that 15 years on some consider it an outdated phrase and that they would use “trans” instead.
It also refers to both “biological sex” and “legal sex”; the Supreme Court has heard talk of “certificated sex” and “original sex”.
As recently as 2019, the Scottish government was clear it wanted to maintain a distinction between definitions of biological sex and of gender identity.
During debate of a Holyrood bill which allowed for questions of gender to be included in the census, cabinet secretary Fiona Hyslop told MSPs that “the intention behind the bill has never been to conflate sex and gender identity”.
But in the Supreme Court, the government’s lawyers are now arguing that sex and gender are one and the same when someone has obtained a gender recognition certificate, because of how the terms are used interchangeably in the 21-year-old Gender Recognition Act.
A ruling from the highest court in the land might prove to be quite useful simply in terms of clarity about the language.
And if it does have a significant impact on how the Equality Act is interpreted, it could also have an impact on how public bodies and service providers read their guidance and policies.
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