The case for due diligence: assessing and owning policy and practice
How do public authorities ensure that their policies, practices and services are fair and non-discriminatory? In Scotland, the standard approach is to undertake an Equality Impact Assessment (EQIA) which allows authorities to assess the impact of policies, practices or services against the requirements of the public sector equality duty.[i] For policies, laws or decisions involving young people and children, a Children’s Rights Impact Assessment (CRIA) provides a similar mechanism.
In practice, the standard of assessment produced by authorities can be variable. For instance, some authorities muddle up the core protected characteristics in the Equality Act 2010 (EqA), undertake partial assessments, or reach conclusions based on limited input.[ii] Sometimes EQIAs may be omitted altogether, for example when guidelines produced by third sector bodies are adopted into practice by authorities. As outlined below, in such circumstances it is also not always clear where responsibility or ownership lies.
Guidance for schools: ownership and accountability
In 2017 LGBT Youth Scotland and Scottish Trans Alliance published guidance on supporting transgender young people in schools. The project was funded and supported by Scottish Government, and endorsed by range of stakeholders including around sixteen local authorities, Education Scotland, NHS Lothian and multiple public sector organisations. Although intended for use in schools, the guidance was not however, subject to an EQIA nor a CRIA by any of the key stakeholders (Scottish Government, Education Scotland, COSLA, local authorities or individual schools) nor its producers.
In 2019 a detailed unofficial CRIA flagged a number of concerns with the guidance, principally in relation to children’s privacy rights, including potential breaches of the EqA and multiple UNCRC Articles. Prompted by these concerns, the Commissioner for Young People and Children in Scotland (CYPCS) asked the Scottish Government to review the guidance for compliance with domestic and international law. LGBT Youth Scotland also offered to help facilitate a review. The Scottish Government declined to do so on the basis that it was not a government publication and therefore not the responsibility of government. The Scottish Government also distanced itself from the publication in 2018, when it stated the claim that it had endorsed the publication was an error by its producers. The guidance is however still fully supported by Scottish Ministers as ‘one of a range of tools available to schools and education authorities in their support for transgender pupils’, carries the Scottish Government logo and is accessible on the Education Scotland website.
At the time of writing, it remains unclear where responsibility for the guidance lies, or given the concerns raised by the Children’s Commissioner, whether it should be used by schools. While the Scottish Government has stated it is for individual schools and authorities to decide, in practice such decisions are likely to be muddied by government support, multiple local authority endorsements and in some areas, formal incorporation of the guidance. For instance the City of Edinburgh Council expects schools to meet the guidelines as part of its Equality, Diversity, and Rights Framework 2017-21, despite the lack of formal assessment. Schools in the city are therefore now formally expected to meet guidelines the CYPCS believes require reviewing for legal compliance, without anyone having clear responsibility for undertaking that review.
Guidance for women’s service providers: protected characteristics
In a different example, guidance for women’s service providers (for example, counselling or refuge services to women experiencing domestic abuse) on the inclusion of transgender women shows how a focus on a single protected characteristic may lead to legal interpretations which overlook protections available in law to service users with other protected characteristics.
Developed in partnership by the Scottish Government funded LGBT Domestic Abuse Project, Scottish Women’s Aid, the Tayside Violence Against Women Training Consortium and the Scottish Transgender Alliance, Stronger Together (2nd edition) is intended both for training purposes and as a standalone document for service providers.
The document is framed in places as offering legal advice, but does so with a focus only on one potential group of users, in this case, transwomen with the protected characteristic of gender reassignment. On the provision of a women’s only service to transwoman, the publication states: ‘It is unlawful discrimination to treat someone worse than others because they have a protected characteristic (as identified within the Equality Act 2010), in this case gender reassignment. It would therefore not be acceptable to refuse to provide a service to a trans woman because she is trans’. The guidance also advises that if other service users are uncomfortable sharing a service ‘this is rightly seen as no reason for the trans woman to be moved’, and that in this situation ‘we would work to educate other service users – much in the same way that we would if we received comments regarding other service user’s ethnicity, religious affiliation or sexual orientation’.
The document does not however fully engage with the single-sex provisions in the EqA under which it is permissible to treat someone differently because of their sex, and limit the legal circumstances for inclusion in single-sex services. Under the EqA, a transwoman who does not hold a Gender Recognition Certificate (GRC) is legally male and as such would be treated as male for the purposes of the sex discrimination provision (see Norman (2018) on R (Green) v Secretary of State for Justice  EWHC 3491). Exemptions under the protected characteristic of sex also allow transwomen with a GRC to be excluded from single-sex services and spaces in some circumstances, providing it can be objectively justified. For example, the EqA allows females only (or males only) to be appointed to posts for genuine occupational requirement reasons. More broadly, EHRC guidance states that access for transwomen must be balanced against the needs of other service users.
While Stronger Together includes statements about what is lawful in the main text, it also includes a substantial legal disclaimer, on the final page of text, following the appendices:
“The information in the guidance document is for general guidance on your responsibilities and is not intended to provide legal advice. If you need legal advice about your responsibilities or intended action, please contact a solicitor. We have tried to ensure that the information in this guidance is as accurate and up-to-date as possible. We will not, however, accept liability for any loss, damage or inconvenience arising as a consequence of any use of, or inability to use, any information in this guidance. We are not responsible for claims brought by third parties arising from your use of this guidance. We assume no responsibility for the contents of referenced documents.”
This is a strengthened version of a disclaimer similarly placed in the first edition, which referred only to Dundee City Council.[iii] This may reflect the Council’s lead role in the document’s initial production, or that it was the only partner at that stage whose lawyers required this protection. The first edition says the document is not intended to provide “exhaustive” legal advice and that readers should seek legal advice if they need “more details or information about their legal responsibilities”. The revised disclaimer is more absolute than the original one. Even so, a reader who does not reach the appendices can easily be left with the impression in places that the document’s specific purpose is to explain the law. More generally, where documents do include legal disclaimers like this, there is a strong case for ensuring they are prominently placed at the start, so that time-pressed users cannot miss them.
While the Stronger Together guidance presents a limited interpretation of the EqA (which partly reflects EHRC guidance that has since been updated to reflect the terms of the Act more clearly) albeit with a substantial disclaimer, it remains accessible via a range of stakeholders including Scottish Trans Alliance, LGBT Youth Scotland and until recently, Rape Crisis Scotland. iv] It is also listed as a resource on the Scottish Government funded Women’s Support Project and referenced in the City of Edinburgh Council Multi-agency Domestic Abuse Policy (2013).
The case for due diligence
In part, the ambiguities described above reflect the complex and close relationships between public and third sector organisations in Scotland, and the prevalence of co-production within policy-making. The fundamental issue is what might be summarised as a lack of due diligence, due most probably to an absence of clear responsibility for ensuring all necessary impact assessments are undertaken, for all protected characteristics, and independent advice taken on points of law, before documents are issued and promoted. Perhaps more value should also be placed on maintaining some critical distance between everyone involved in cases such as these.
These gaps in the policy process have far-reaching implications in relation to people’s rights and fair treatment. Without proper and detailed assessments, it is unclear how policies and practices impact on people’s rights across all protected characteristics, or affect people’s willingness to use nominally single-sex services or facilities. Advice that is endorsed or supported at a higher level but not robustly assessed also puts stretched frontline service providers in an untenable position in respect of risk and liability. The Scottish Government and local authorities employ lawyers: schools do not, and small charities will have limited capacity to take legal advice. Service providers need to be able to have confidence that good practice recommended to them by higher authorities has been screened first for legal compliance. If national and local government and umbrella bodies do not feel that is their role, then they should not be recommending or providing support for particular practical advice to those on the front line, and even less requiring compliance with it.
While lack of clear ownership and responsibility for national guidance is well illustrated by these two cases coming from the relatively new area of national transgender policy making, the same systemic weaknesses are likely to be repeated in other areas, particularly when organisations feel they do not have internal expertise. Add to this that many service providers are under acute financial pressure and that responsibility for delivering services is increasingly passed to smaller third sector organisations, the incentive becomes very high for everyone to assume someone else has done or will do all the required assessments. But as these cases show, when it comes to the crunch it may in fact turn out that no-one has.
[i] The public sector equality duty requires authorities to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and to foster good relations in relation to nine core protected characteristics
[ii] For example, the advice underpinning this EQIA on the provision of cosmetic surgery by independent healthcare providers states that age restrictions are not ideal for non-surgical cosmetic interventions (botox, dermal fillers, lasers, chemical peels) and should not be too restrictive. It also cautions against ‘too many hoops for consumers’ in relation to age.
[iii] “The information in the guidance document is for general guidance on your responsibilities and is not intended to provide exhaustive legal advice. If you need more details or information about your legal responsibilities or advice about intended action, please contact a solicitor. Dundee City Council has tried to ensure that the information in this guidance is accurate. However, Dundee City Council will not accept liability for any loss, damage or inconvenience arising as a consequence of any use of, or inability to use any information in this guidance. Dundee City Council are not responsible for claims brought by third parties arising from your use of this guidance. Dundee City Council assumes no responsibility for the contents of referenced documents. The inclusion of any reference should not be taken as endorsement of any kind by Dundee City Council”.
[iv] Rape Crisis Scotland removed the 1st edition of Stronger Together from its website in February 2019, after the section on educating other services users was highlighted on social media.