Assessing GRA reform: MBM letter to the National Advisory Council on Women & Girls (28 January 2019)

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We welcome the establishment of the Advisory Council as a forum to champion the interests of women and girls in issues which are, or should be, receiving current political attention.

Given that the Advisory Council’s focus in 2019 will be ‘policy coherence’, we are writing to suggest that Council members call on the Scottish Government to undertake a full Equality Impact Assessment (EQIA) of its proposed reform of the Gender Recognition Act (GRA) 2004, which we understand may form part of the next legislative programme.

In their submission to the Government consultation, a coalition of women’s groups noted the “poor quality” of the partial EQIA and the fact that “no national women’s organisations in Scotland were consulted around the development of the consultation paper”.

“We would note that equality impact assessment is a requirement placed on public authorities by the Scotland-specific regulations of the public sector equality duty. This mainstreaming mechanism demands that public bodies, including Scottish Government, apply a gender lens to their policy development and assess the differential impact on men and women. They are then required to mitigate any unintended impact, or reconsider the design of their policy. Although our concerns with the proposals are around the consequentials, it is unfortunate that the EQIA is of such poor quality (described in the consultation document as a ‘partial EQIA’) that its cursory list of domains of women’s equality that may be affected does not engage with issues we consider to be important, as set out in section two, and potentially overstates others. We would additionally note that no national women’s organisations in Scotland were consulted around the development of the consultation paper.”

Engender, Close The Gap, Equate Scotland, Scottish Women’s Aid, Zero Tolerance, Rape Crisis Scotland (February 2018)[i]

We share the concern of these organisations. The Scottish Government’s GRA consultation focused narrowly on the technicalities of the 2004 Act and, as a result, it failed to consider the implications of the proposed shift to a system of self-declaration of sex on the rights of women and girls. We note that over 3,000 individuals responding to the consultation left comments raising concerns about women’s safety and single sex spaces, and the potential risk of abuse of a self-declaratory system. It should not be left to the parliamentary process to give these concerns detailed attention: they deserve a reasoned response before any legislation is brought forward.

Since the Scottish Government’s consultation, evidence has grown that there is a lack of clarity about the operation of single sex protections under the 2010 Act and the interaction of that legislation with the GRA 2004, and that there is confusion amongst some involved in running single sex services about the law.[ii] [iii] [iv] As part of an EQIA, the Scottish Government therefore needs to set out clearly its understanding of the relationship between the GRA 2004 and the Equality Act 2010, and how it expects its proposals to affect the practical operation of the single sex protections set out in the 2010 Act. It needs to be precise about its own understanding of whether, and if so how, holding a Gender Recognition Certificate (GRC) affects a person’s rights under the Equality Act 2010.

The lack of a proper EQIA is not unique to this case. We have reviewed a number of policies introduced across the public sector for which public bodies have either failed to undertake EQIAs, or EQIAs they have undertaken have been inadequate, failing to properly assess the potential impact on women and girls. We would be happy to provide further examples. The overarching point is that the repeated lack of proper attention to the impact of changes on the protected characteristic of “sex” suggests that the Scottish Government needs more generally to be encouraged to provide much clearer guidance and leadership by example that such assessments ought to be taken seriously as an essential part of the policy process.

We believe the absence of a proper EQIA has been detrimental to public debate on GRA reform and will be a detriment to any legislative process if it is not rectified. We therefore hope that Council members will firstly consider calling on the Scottish Government to undertake a full EQIA of its proposals, before proceeding with reform of the GRA, and secondly that they will convey a more general message to the Scottish Government that EQIAs relating to the protected characteristic of “sex” should be given proper priority in every case where they are relevant





NACWG response
The NACWG is copied below, which states that the Council is not the correct channel for raising the matter with Scottish Government.

Dear MurrayBlackburnMackenzie

Thank you for your letter dated 28 January, which was originally received by the First Minister’s National Advisory Council on Women and Girls (Advisory Council) secretariat on 24 January but not acknowledged until 29 January. I also note a further copy of the same letter directed to another Scottish Government Equality Unit colleague, which was received on 2 February. I can confirm that your letter was circulated to all core Advisory Council members and please accept this as a collective response from us, to all mentioned contacts.

The Advisory Council was formed as a catalyst for change to address gender inequality by providing independent strategic advice to the First Minister, and is featured in the current (2018-19) and previous two Programme for Government statements.
The Advisory Council’s vision is of a Scotland which is recognised as a world leader, for its commitment and action towards realising an equal society where all women and girls can reach their true potential.

In reference to the contents of your letter, we do not believe that the Advisory Council is the correct channel for what you are proposing – we are not a channel to lobby the government on any and all issues relating to women. We have a clear remit and strategy, which was developed with our Circle (currently just over 600 stakeholders from all sectors across Scotland), and ultimately, the focus of the Advisory Council needs to remain clearly aligned to this remit.

Please rest assured that we are dedicated to progressing gender equality in Scotland and will continue to do so as we work through our strategy.

We suggest that you contact the relevant Scottish Government officials directly over your concerns.


Louise Macdonald OBE
NACWG Independent Chair