The Government’s Programme for Scotland 2019/2020 states that the Scottish Government will ‘consult on the detail of a draft Gender Recognition Bill by the end of this year, setting out our proposals to reform the current process of obtaining a Gender Recognition Certificate and how we will bring Scotland into line with international best practice’ (p.18).
This blog sets out twenty questions on how the Scottish Government anticipate that a reformed GRA based on self-declaration will work in law, the evidence base for reform, and the Scottish Government position on the Equality Act 2010. These are questions to which the answers are currently contested, answered implicitly but not explicitly in the earlier consultation, or otherwise unclear. We believe the government’s position on them ought to be made clear in or before any further consultation. The blog also includes questions about how gender self-identification currently works in relation to data recording.
What are the legal effects of a Gender Recognition Certificate (GRC)?
Section 9(1) of the GRA says that a GRC says “if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman.” Section 22 introduces criminal penalties intended to prevent any identification of a person’s trans status or pre-transition identity, with some limited exceptions.
Q.1 Does acquiring a GRC, and therefore a different legal sex, affect a person’s legal rights under the Equality Act 2010?
Q.2 Does acquiring a GRC affect a person’s legal right to have their sex at birth or any identifying characteristics before transition (name, other aspects of personal history) kept confidential?
Gender self-declaration and the GRC-holding population
At the time of the passage of the 2004 GRA Bill, the UK Government stated it expected around 5,000 people to use the legislation. In line with this prediction, just under 5,000 people have used the legislation.
Q.3 How many GRCs does the Scottish Government expect to be issued under a system of self-declaration, compared to the current system?
Q.4 Could gender self-identification expand the GRC holding population to include the following groups: people who would not qualify for a medical diagnosis of dysphoria; people who have sought no medical advice or diagnosis of any sort; people who have done less to socially transition than is currently required?
Evidence base on international best practice
Q.5 Has the Scottish Government undertaken any analysis of the law, and its application in settings such as hospitals, schools and prisons in Ireland and other jurisdictions it considers to represent ‘international best practice’?
Q.6 Does the GRC equivalent in Ireland, Denmark and any other countries considered to represent ‘international best practice’ confer the same legal rights as a GRC in the UK?
Equality Act 2010
Q.7 Does the Scottish Government support the single sex exceptions under the Equality Act 2010?
Q.8 Does the Scottish Government see any ongoing need for women-only spaces and services based on biological sex?
Q.9 Does the Scottish Government believe that women should ever be free to organise around their shared experience of being born with a female body and all the physical, economic and social experiences that creates, without including people who do not share that experience?
Q.10 Does the Scottish Government believe that the Equality Act 2010 currently permits single-sex policies that exclude everyone who has not used a GRC to change their legal sex to that covered by the policy?
Q.11 Does the Scottish Government believe that the Equality Act 2010 currently permits single-sex policies that exclude even those who hold a GRC for the sex covered by the policy?
Q.12 Does the Scottish Government attach any weight to the situation of women who experience a loss of privacy and dignity and a reduction in how safe they feel, if required to share certain spaces with or receive certain services from a person they can correctly identify as male by birth?
Q.13 What is the Scottish Government view of the earlier requests by Stonewall and the Scottish Trans Alliance to the Westminster parliament to have the single-exceptions in the Equality Act removed?
Gender self-identification in practice: data recording
The Cabinet Secretary for Social Security and Older People has stated that the Scottish Government recognises sex and gender are separate concepts.
Q.14 In relation to the 2021 census, can the Scottish Government explain how can we collect reliable data on either sex or gender identity if both are conflated into the same question?
Q.15 What analysis has the Scottish Government undertaken to establish the potential impact of changing the sex question in the census to one that is explicitly based on self-identification on data quality?
Q.16 What analysis has the Scottish Government undertaken to assess the impact of the decision to remove sex recorded at birth from NHS records, as recorded in the CHI system, and to record self-identity, on the delivery of sex-specific and single-sex services ?
Q.17 In relation to criminal justice data, what analysis has the Scottish Government undertaken to quantify the potential effects of self-identification principles on the quality of data on those crimes disproportionately committed by males, such as violent and sexual offending?
Q.18 Criminal proceedings in Scotland data show that only three females were convicted of sexual assault in 2017/18, compared to 299 males. Given these low numbers, does the Scottish Government acknowledge that a small percentage of male people being recorded instead as female would skew this data?
Q.19 Has the Scottish Government undertaken any analysis of the potential impact of recording based on gender identity in the monitoring of inequalities in male-dominated industries, for example the tech sector?
Q.20 Does the Scottish Government support the recommendations in Caroline Criado-Perez’s book Invisible Women that we must meticulously collect sex-disaggregated data to tackle sex-based discrimination?