There is a darkly riveting case in Scotland that I suspect will lead to something — though I am not sure what. What I am sure about is that the case of Isla Bryson, a transgender woman, will have consequences far beyond that country in northern Britain about the size of South Carolina, with a population of about 5.5 million. The case is monstrous, repulsive, but affecting and grimly educative. Not only a microcosm but a parody of the transgender dispute.

Bryson was convicted of raping two women, one in 2016, the other in 2019. At the time of the offenses, he was male, his sex assigned at birth, and known as Adam Graham. In 2020, court papers reflected Graham’s wish to transition from natal male to female, and their name was changed to Isla Bryson. During the trial, the court heard of Bryson’s troubled background, including a brief marriage to a woman. Bryson told the court how they had felt a sense of dysphoria since the age of 4, and eventually decided to transition to female at the age of 29. Now 31, she was found guilty and initially remanded to a segregated wing of a women’s jail in Stirling, central Scotland, to await sentencing.

 While it is part of the United Kingdom, Scotland has its own parliament and this has power to make laws on issues that affect Scotland, for example on education, health, transport and some aspects of the criminal justice system—in much the same way that US states are able to legislate. The UK Parliament controls defense and foreign affairs. Scotland’s Gender Recognition Act, of 2004, determined the process by which transgender people can legally change their gender. Recently, the Scottish Government proposed contentious changes to the law that would reduce the waiting period for adults to change their legal gender from two years to three months and, crucially, withdraw the need for a medical diagnosis of gender dysphoria. In other words, gender would become a matter of self-identification—whatever a person declared themselves to be, male, female, or neither.

The Last Days of Nicola Sturgeon

A central proponent of this change, known as the Gender Recognition Reform Bill, was Nicola Sturgeon, who was the first woman to hold the position of Scotland’s First Minister when she was elected unopposed in 2014. Sturgeon, for most of her term of office, was enormously popular: a sterling advocate of Scottish independence, a redoubtable supporter of the European Union and a conscientious and belligerent defender of her own beliefs. She was politically dominant in Scotland and had few, if any, peers. But her support of transgender rights insinuated her into a debate that consumed her. She recently resigned, at 52, her political career prematurely ended by an issue that is sure to doom many more politicians and other kinds of leaders in the years ahead.

Without realizing it, Sturgeon staked her political life on the transgender reforms. She pushed through the changes. Trans people in the UK generally have the same kind of legal protections against discrimination as other protected groups under the 2010 Equality Act and the Scottish reforms were, for some, not necessary. Reem Alsalem, the United Nations special rapporteur on violence against women and girls, warned Sturgeon that the reform would be open to abuse by male sex offenders, thus endangering women. Feminist campaigners argued similarly that male sex offenders would attempt to use transgender recognition to gain access to female spaces. Evidence submitted to the UK Houses of Parliament in 2021 provided British Ministry of Justice statistics that showed sex offenders accounted for 59% of trans inmates, compared with 17% of male inmates and just over 3% of female inmates. The Equality and Human Rights Commission also expressed concerns.

But Sturgeon was adamant and the reaction was virulent. Harry Potter’s creator, the novelist J. K. Rowling, a resident of Scotland, was seen in a tee-shirt bearing the phrase, “Sturgeon … destroyer of women’s rights.” Sturgeon is a self-professed feminist and Rowling’s protest was damning.

Threat to Women

Meanwhile, concerns grew about Bryson’s presence in a women’s facility. Bryson, remember, was convicted of rape, the most invidious male crime against a woman’s body autonomy. It seemed perverse that a rapist was in a female prison. In a rare intervention, Sturgeon overturned the situation, defending her decision in a somewhat oblique manner: Isla Bryson “regards herself as a woman,” Sturgeon said, but “I regard the individual as a rapist.” She emphasized it was important not to suggest “even inadvertently” that trans women posed an inherent threat to women.

There is no unanimity, nor even close to a consensus on how to deal with single-sex spaces such as prisons, nor indeed most of the other questions posed by trans people. How, for example, is society meant to respond to children who experience gender ambivalence or just do not comply with binary expectations? But Sturgeon, during the passage of the Gender Recognition Reform Bill, was in no mood to tolerate alternatives to her vision. She decried those who disagreed with that vision as “deeply misogynist, often homophobic, possibly some of them racist as well.” Opponents of transgender rights are more usually described as transphobic.

In January 2023, Bryson was moved to a male prison in Edinburgh. A month later, she was sentenced to 8 years imprisonment with 3 years of supervision after release. The court heard that Bryson was taking hormones and seeking gender reassignment. At the time of sentencing, it seemed as if she would be taken to a male prison, presumably in a Vulnerable Prisoners’ Unit (VPU), where she would be segregated from other prisoners. These kinds of units do not always afford protection: for example, Richard Huckle, a sex offender, was found dead in his cell in a Yorkshire prison’s VPU in 2019. One wonders whether Bryson will survive her full sentence. The Scottish Prison Service maintains that it determines where transgender prisoners serve their sentences “on an individualized basis, informed by a multi-disciplinary assessment of both risk and need.”

Inclusivity and Fairness

How is this case a parody, an exaggerated imitation of wider society? If we stand back, it’s possible to imagine how Bryson, or rather an imagined Bryson, is how many people perceive transgender people: sly, deceptive, inauthentic and possibly dangerous. That may be a subjective and wildly inaccurate representation, but it is a persuasive misconception and one that affects much of the transgender debate. Anxiety over the case expresses a more general apprehension that women are often abused, attacked and sometimes killed by physically imposing men, as Bryson once was.

Do people really see all trans people with a sense of trepidation? Yes and no. A great deal of the opposition to the extension of transgender rights is fueled by a fear that every gain made by transgender people means a loss to natal women (those assigned female at birth). But not everyone accepts that there is a zero-sum game in play and many believe that a mature 21st culture should be capable of encircling and supporting all manner of groups that have been traditionally excluded, marginalized or, in some way, Othered.

Scotland now has to wrestle with the ideological questions that have already challenged some other countries and will surely demand responses from many more in the coming years: How can the law affirm and enforce transgender rights while upholding the entitlements, protections and privacy of natal women? There are two fundamental but potentially incompatible principles at stake. The first is inclusivity — the policy of providing equal access, opportunities and resources to people who have been historically regarded as peripheral. This has become almost totemic of modern culture and its effects are visible in the arts, entertainment, industry, politics and in practically every public sphere. Inclusivity has become one of those sacrosanct postulates like the right to work or fundamental human entitlements. Its moral value is so obvious, it needs no justification. The trouble is: it sometimes leads to unfairness.

The principle of fairness is older and involves the provision of impartial and just treatment without either discrimination or favoritism. It remains a distinctive feature of society and, while in practice it is often compromised, the essential value of fairness, particularly in democratic societies, is beyond dispute. Or at least it has been. Now, the concept of fairness may need adjustment.

Unwinnable?

People born after, say, 1950, will have grown, advanced and learned to live in a world that was, at once, liberated, yet still bound by tradition. They would have been inured to critiques of patriarchy and the persistent pressures for equal pay and conditions of service for women. They would have lived through times when Women’s Liberation, as it was called in the 1960s and 1970s, broke barriers, and when the Pill combined with the legalization of abortion, gave women previously unheard of control over their own bodies.  A parallel fight for release and self-assertion was fought by gay activists, principally Stonewall and the Gay Liberation Front. The removal of sodomy laws in the US and the 1967 Sexual Offences Act in Britain wiped away legal restrictions, but not the stigma attached to homosexuality. That started to disappear after celebrities like George Michael and k.d.lang either came out or were outed in the late 20th century.

Today, it would be unthinkable to suggest there could be a fair society without strenuous efforts to amalgamate the best interests of the widest possible range of groups. Extra efforts to accommodate once marginalized groups are regarded as perfectly compatible with fairness. Yet, satisfying the claims, wishes and perhaps demands of the transgender lobby, for many, leads inevitably to unfairness — as the ramifications of the Bryson case suggest.

So, how do we square a circle in which the interest of one such group conflicts with those of another? Many women see this as easy: transgender women are exactly that: not women, but “transgender women.” Women have, at various times, been denied the right to vote, own property, keep their own income, be educated, serve in the military or in politics, or participate in countless other pursuits that men have overseen. Women haven’t been gifted their current rights — they’ve fought for them and, as far as they are concerned, paid their dues. It must be galling (and I write as a straight cisgender man) for many to discover that some people born men –and who have enjoyed the privileges that this status confers–  have now chosen to live as women and are demanding rights of their own.

My guess is that inclusivity has become a cultural value of such unquestioned paramountcy, it will supplant other considerations. The women’s rights lobby fought, fought hard and emerged victorious on many fronts. It may now be engaged in an unwinnable fight, caught in a culture war that is sure to dominate social and political discourses in the years ahead. [Ellis Cashmore’s latest book is “The Destruction and Creation of Michael Jackson.”]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.