Holyrood invents a novel human right: the right not to define your own bill

ON 24th SEPTEMBER HOLYROOD‘S NEWEST EQUALITIES MINISTER Simita Kumar appeared before the Equalities, Human Rights and Civil Justice (EHRCJ) Committee to talk about the Scottish Government’s long-promised Human Rights Bill. The Bill’s discussion paper proposes stuffing “gender identity” into a new equality duty on public bodies, and then leaving the term undefined, for the courts to invent later. I asked Ms Kumar a question a first-year law student could parse: what does the Government mean by it, and what legal effect will it have?

What followed was not an answer so much as a long meander around the question. The Supreme Court ruling on biological sex was “accepted”. The Equality Act would “take precedence”. Papers already published were “in the past”. The Bill was “still being considered”. There was “intersectionality”. There was an “evolving legal landscape”. There were disabled people who are also LGBTQI+. There was, in short, everything except a definition.

I tried again. Would the Bill use sex, meaning biological sex? If “gender identity” appears, what is it? Kumar declined to “give evidence on things that haven’t been decided yet,” listed colour, sex, sexual orientation, disability and age, and offered to write later. Nearly five hundred words with zero meaning. On X Tess White called it a word salad. Graham Linehan awarded it “Olympic level not-answering-the-question”. Other observers settled for “embarrassing waffling”. My own clip – “a VERY long time not to really answer my two questions” – did the rounds on social media. She has promised to scrutinise the Bill’s collision with the Equality Act. She should – because someone has to.

This is not a drafting quibble. The Government’s own paper, “Towards a Human Rights Bill for Scotland”, admits the proposed equality duty has “evolved” to include “gender identity”, a phrase that appears in none of the four UN treaties ministers say they wish to incorporate. The extra ground is borrowed from an International Covenant on Economic, Social and Cultural Rights (ICESCR) general comment, which in turn lifted it from the Yogyakarta Principles – an activist document with no legal force, one clause of which demands sex be stripped from identity documents. That is not “incorporation” – it is smuggling.

Then there is CEDAW, the Convention on the Elimination of All Forms of Discrimination Against Women, which my Conservative colleague Meghan Gallagher asked about. CEDAW is a sex-based treaty which talks about women, men, maternity and the two sexes. “Gender,” in CEDAW, means the stereotypes based on biological sex. It does not turn a man into a woman for the purposes of a women’s treaty.

CEDAW’s 1979 text was treated as as a living mood-board, endlessly “evolved” by non-binding general recommendations

For Women Scotland wrote to the committee after Scotland’s feminist policy and advocacy organisation Engender testified at its roundtable on September 17, in which the Convention’s 1979 text was treated as a living mood-board, endlessly “evolved” by non-binding general recommendations. Courts have already been clear that general comments do not rewrite treaties. The Court of Session has held that Holyrood cannot broaden protected characteristics beyond the Equality Act, and that public authorities cannot be required to act contrary to it. CEDAW does not secretly enact gender identity. Pretending it does is not progressive. It is a legal category error with practical consequences for single-sex spaces.

Reform’s objection is simple. You cannot incorporate a women’s convention and, in the same breath, invent an undefined identity that competes with the category “woman.” You cannot tell the public the Equality Act takes precedence and then build a parallel duty that courts will be invited to stretch. And you cannot run a country on “the big picture” while single-sex hospital wards, sports, prisons and refuges become a lawyer’s playground.

You cannot protect women if the law cannot say what a woman is

This Bill is a delivery risk. The last session left a trail of unimplemented statutes – on children, domestic abuse protections and parts of the public sector equality duty – while new strategies and funds multiplied. The Human Rights Bill itself was parked, then promised for year two of this session. Incorporation of ICESCR-style social and economic rights sounds generous until you ask who pays, who sues, and whether “progressive realisation” becomes a judicial instruction to spend money Holyrood does not have. A “due regard” duty that nobody can measure is not a right, but a consultancy.

Data gaps, already admitted around the equality duty, would get worse if “gender identity” is added without a definition. You cannot count what you will not name. You cannot protect women if the law cannot say what a woman is.

None of this is an attack on gay people, or on the tiny number of individuals with the protected characteristic of gender reassignment. It is a demand for accurate language. Sex is real. Beliefs about identity are beliefs. Public bodies already have duties under the Equality Act. What they do not need is a second, undefined duty, drafted to please lobbyists and then declared too early to explain.

If the Government cannot say what “gender identity” means before it writes it into the duties of every council and health board in Scotland, it should leave it out. You do not get to wave at the big picture and hope the detail arrives later.

Call it careful consideration if you like. I will call it what it was: a definition that went missing in committee.