There is a simple answer to the question: what is a woman

On initial reading, it’s a hopeless fudge, tilting one way and then immediately the other, the action of a man leading a minority government who can’t afford to offend anyone. In the process, he risks pleasing no one.

But perhaps there is more to this. What Mr Swinney did not do is define trans women and biological women in the same way, as being the same. His words make a subtle distinction between the two, and this is perhaps significant. Why? Because only if there is acknowledgement of the difference can any kind of compromise be reached that tries to do the right thing, as far as possible, by both sides.

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A rational view that’s respectful to both sides might sound something like this – that a woman is an adult human female, that a trans woman is not exactly the same as a woman, but in spite being somewhat different, her experience is equally valid; that a trans woman has the right to be treated as the same as a woman right up until the point that doing so compromises the rights and safeguards of biological women and girls. At that point, concessions must be made to the fact that there are differences between the two.

That is roughly where the public are and have been all along. Polling shows they want people to be able to live in the opposite gender to the one they had at birth and for transitioning to be less intrusive and more straightforward, but have reservations about the automatic accessing of women-only spaces by transgender women and about gender self-identification. Public awareness of the pitfalls has increased with high profile cases such as that of Isla Bryson, the double rapist who was initially sent to Cornton Vale women’s prison after conviction.

But while this may be the public’s position, it’s not where some politicians are, at least not outwardly. Politicians are still afraid, the question of “what is a woman” having become one of the most contentious in modern politics.

A group of trans activists have long argued that a trans woman and a biological woman are indistinguishable from one another, and indeed the same in law once someone has a gender recognition certificate, so to say anything else is effectively to deny transwomen their true identities. In this climate, anyone pointing out the differences and worrying about the perils for women and girls of ignoring those differences, has been at risk of being accused of transphobia.

How will John Swinney and Kate Forbes cope with the trans issue? (Image: free)

Accusing moderate people of transphobia simply for being rational and honest, is and always has been both silly and deeply unfair, but so stridently has it been expressed, with people’s careers ended and reputations dragged through the dirt because of it, that for a while it had a chilling effect on meaningful debate.

But over the last two years there has been a subtle but unmistakeable shift.

The position of the UK Labour party is a weathervane for this change. In March 2022 Mr Starmer appeared to suggest there was no difference between biological and trans women: “A woman is a female adult, and in addition to that trans women are women, and that is not just my view, that is actually the law,” he declared.

But in July 2023, Mr Starmer said something slightly different, that “a woman is an adult female, so let’s clear that one up”. Still articulating a compassionate position on trans rights, UK Labour has gone from supporting gender self-identification to a position where the party proposes to reform outdated laws and make it easier for trans people to transition legally, but maintain the requirement for a diagnosis of gender dysphoria, which it wants to simplify, to “uphold legitimacy of applications and confidence in the system”.

Labour also accepts the need to maintain certain spaces that are for biological women only. Mr Starmer says Labour has “reflected on what happened in Scotland”. In other words, they have taken on board the real-world issues and found a compromise.

This has inevitably annoyed some, but to millions of people who are anxious observers of this debate, it will seem like an attempt at last to reach an accommodation with both perspectives.

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In Scotland, the position of the two parties vying to win the most seats at the forthcoming general election, remains somewhat unclear. Scottish Labour, in principle, still supports gender self-ID, though Anas Sarwar has indicated that his view has changed in some respects since Holyrood passed the now-halted Gender Recognition Reform (GRR) Bill. Some further clarity from Mr Sarwar will be required before the general election.

The SNP? Well, that brings us back to Mr Swinney’s ambiguous words.

The SNP has suffered as a consequence of its two recent former leaders being seen as strongly partisan on this issue. Nicola Sturgeon made things unnecessarily hard for herself and her party by seeming to equate critics of the now defunct act with transphobes. Humza Yousaf meanwhile went so far as to mount a doomed legal challenge against the UK Government’s suspension of the GRR Bill, much good it did him.

Mr Swinney? Well, he looks unlikely to emulate his predecessors by digging into the trenches on this one. He has declined to say whether he would resurrect the row over the GRR Bill with an incoming Labour government, but it’s doubtful he’d want to.

What’s become crystal clear over the last two years is that you can’t even have a coherent debate about gender if you pretend there are no differences between trans women and biological females. At last we seem to be moving past that point. It may not sound like it if you listen only to the voices on the opposing poles, but a compromise on this most contentious of issues might finally be on the horizon at last.