20 June 2019
We believe that a more measured, evidence-based and inclusive approach to reforming the Gender Recognition Act 2004 (GRA) will result in better policy and legislative outcomes, for all affected groups.
The Scottish Government needs to address the existing evidence gaps and provide clarity on how it expects its proposals to affect the practical operation of the single-sex protections set out in the Equality Act 2010. It should also undertake a full, detailed Equality Impact Assessment (EQIA). It also needs to be clear on what is meant by bringing Scotland ‘in line with international best practice’ and provide detailed evidence on the operation of self-identification in other countries.
To meet its Public Sector Equality Duty, the Scottish Government should now work with a wide range of stakeholders, including those representing women’s interests, to discuss options for GRA reform and secure wider consent for any proposals ahead of commencing any formal legislative process.
There are currently major evidence gaps on how statutory gender self-identification will affect other areas of law and policy, which need to be properly reviewed ahead of any legislative steps. While the Scottish Government has acknowledged that the possession of a Gender Recognition Certificate (GRC) affects the operation of single-sex services and spaces, it has not explained how it believes the law in this area should work (see WGS 2019: 19). The EHRC has stated that the issues at stake are complex, but has not provided clear or consistent guidance. There is also confusion among some involved in running single-sex services about the law in this area.
The Scottish Government consultation on GRA reform focused narrowly on the technicalities of the 2004 Act, and did not consider how statutory gender self-identification would impact on the rights of women and girls. In their submission to the Scottish Government consultation on GRA reform, a coalition of women’s groups noted the ‘poor quality’ of the partial Equality Impact Assessment.
Under the Public Sector Equality Duty (PSED) the Scottish Government is required to facilitate good relationships between those with different protected characteristics. We have found no evidence to indicate that these responsibilities have been met in relation to GRA reform. The Scottish Government did not consult with any women’s organisations or representatives on the development of its consultation paper on GRA reform, focusing only on a narrow group of interests. 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. These deserve a reasoned and detailed response.
In the short to medium-term, there are practical steps that can be taken to improve the lives of transgender people ahead of any legislative change. These include taking action to address waiting times for access to specialist services, and where appropriate, providing additional spaces and facilities to ensure that the rights of all groups are respected, without conflict. The fee for a GRC application is set by secondary legislation, not the Act, and could be lowered by the Scottish Government. The Scottish Government could further explore with the Gender Recognition Panel whether the requirements for evidence, particularly of medical treatment, could be clarified and simplified under existing law. The current process for obtaining a GRC could also be clearer, given that survey research (2017: 213) suggests this is often misunderstood.