AT THE opening ceremony for the new Scottish Parliament building on October 9 2004, the message in Edwin Morgan’s poem “Open the Doors! Light of the day shine in; Light of the mind, shine out” took centre stage.  

A mood of optimism, of political confidence, and of a parliament which engaged fully with the citizens of Scotland, filled that new home for the Parliament.  

We had moved from the temporary accommodation which had been the Parliament’s home since 1999, and there was still an enthusiasm for doing politics better than in the past. 

That day, and that poem, has come back to me many times over recent months. Sitting in the public gallery during the week before Christmas, as MSPs debated the Gender Recognition Reform (Scotland) Bill, it was impossible to conclude that the parliamentarians were really doing their best. 

Over three extended sittings, amendments were put forward and mostly rejected by the Scottish government. Two sessions ran on after midnight, with apparent disregard for any attempt at a family-friendly working environment, and no consideration for those with disabilities who needed additional support. 

The Bill was passed in the Parliament on Thursday December 23, led by the SNP/Green partnership government, with support from Scottish Labour and the Liberal Democrats. 

The Conservatives opposed the Bill but gave their members a free vote. Two Scottish Labour MSPs were absent and two voted against the Labour whip, against the Bill.

The Scottish government repeatedly asserted that this Bill was simply about changing the process by which a gender recognition certificate (GRC) can be obtained, simplifying it and removing the need for medical diagnosis. 

In summary, a person over the age of 16 can apply for a GRC after living in their acquired gender after three months, and making a declaration that they intend to live in that “acquired gender” permanently. The administration of this moves to the National Register of Scotland. 

The Scottish government estimates there could be a tenfold increase in the numbers of GRC holders in Scotland. 

Earlier in December the Scottish government had obtained a judgement against campaign group For Women Scotland, which ruled that the legal position is that a GRC grants a change of sex under the Equality Act. 

The ruling from Lady Haldane was barely mentioned in the Parliament chamber debate, and although frequent references in government speeches suggested that the GRR Bill would not affect the provisions of the Equality Act 2010, it clearly does. 

We no longer have a stable definition of “woman” (or “man” for that matter) and there is therefore no clarity as to how protections or positive action measures afforded to women as a sex will be applied.

Numerous representations were made to the parliamentary committee which scrutinised the draft legislation. Some were heard, some were not called — perhaps most shockingly, female survivors of male violence and abuse were advised to put their concerns in writing. 

It was left to others to give these women a voice, a point picked up by the UN commissioner on violence against women and girls, Reem Alsalem, who made representation to both the UK and Scottish governments with strong concerns about the potential harm that could come to women and girls if the legislation is passed in its draft form.

Amendments were tabled against lowering the age from 18 to 16; to provide protection and clarity for women in prisons; for intimate care; to allow continuation of policies which would ensure single-sex wards in healthcare settings; to ensure additional safeguards for young people; to fully cost additional support for young people seeking a GRC; tighter monitoring of the impact of the new legislation; procedures to ensure clear guidance to service providers, to local authorities, to schools; and to prevent known sex offenders from obtaining a GRC — all rejected. 

The Scottish Parliament committee members did not exercise their duty to thoroughly scrutinise the draft legislation. Many points should have been explored in more depth. Safeguarding should have been at the heart of our MSPs’ concerns. 

The interim findings of the Cass review were dismissed as not relevant in Scotland. An amendment proposing a delay until the final Cass report was published was rejected. 

Some argue that this has been one of the most extensive consultations on a piece of legislation, running over several years in Scotland, yet the Scottish government and the Scottish Parliament have failed to thoroughly discuss cross-border implications.

It was clear from watching the final stages of the debate in December that there had been no serious attempt to establish clarity over the interaction between the Equality Act, which is reserved law, and the GRR (Scotland) Bill.

We now have a badly drafted piece of legislation, from whatever standpoint, and the prospect of intervention from the UK government. And that intervention is entirely understandable. 

Arguably the GRR (Scotland) Bill, in changing the basis on which a GRC can be granted, and with the Haldane ruling supporting the Scottish government’s view that a GRC changes a person’s sex under the Equality Act, impacts on a reserved matter. 

Scottish Labour took the government to task on some of the flaws in the legislation, members proposed amendments that were all rejected, yet somehow Labour then supported the final Bill. 

Explanations are awaited on that one — but in the meantime, Labour should be supporting the application of S33 and 35 of the Scotland Act 1998, legislation proudly brought forward by a Labour government, and acknowledging that the devolution settlement did not give authority to the Scottish Parliament to pass legislation which impacts on reserved areas, in this case the Equality Act.

Public opposition to the Bill has become more visible in recent weeks and should not be dismissed. Too many questions remain unanswered, and this serves no-one well. 

Our parliamentarians have a duty to take making new legislation seriously, to be thorough in their scrutiny of proposals from the Scottish government of the day, and I would argue, to take the citizens of Scotland with them on that journey. 

That optimism from the early days, the openness to engage, particularly with those who are not usually in and around Parliament, has been absent in recent months.  

Back to Edwin Morgan’s poem from the opening of the new Parliament building: “We give you our consent to govern, don’t pocket it and ride away. We give you our deepest dearest wish to govern well…”

There is still work to be done on that front.

Ann Henderson is a former Labour NEC and SEC member.