MBM assessment of the Gender Recognition Reform (Scotland) Bill

We have today published our review of the Scottish Government’s draft Gender Recognition Reform (Scotland) Bill.

The review can be accessed here:

Our review assesses the draft bill and consultation paper against 20 questions we published in October 2019. These questions are structured under five headings:

  • legal effects of a Gender Recognition Certificate (GRC);
  • gender self-declaration and the GRC-holding population;
  • evidence base on international best practice;
  • Equality Act 2010 and
  • gender self-identification in practice (in relation to data collection).

We found that the current consultation paper answered five of our original questions (but raising more questions in each case), and partially answered two. Thirteen questions remain unanswered (of which around half related to data collection issues).

The clearest answer was on how the proposals are expected to change the number of Gender Recognition Certificates (GRCs) that may be issued. The consultation paper estimates that in Scotland around 250 GRCs may be issued a year, compared to around 30 a year now. Although it does not explain why it is no longer using the upper end estimate of 400 quoted in the previous consultation in 2017.

We wrote separately to the Scottish Government on 6 January to highlight quickly a number of points on which it was already clear more information was needed if people were to have a reasonable chance of giving informed responses to the consultation. The letter is annexed to this report.

There are a great many unanswered questions about the draft bill.  Although the consultation paper is couched in language which implies no change is intended to who will be entitled to a GRC, the draft bill has a fundamentally different rationale to the 2004 Act, embracing a larger, more diverse group of people. Most importantly, it will increase the numbers of those who become eligible to apply for a GRC to include those who do not have a diagnosis of gender dysphoria. It also appears to remove any external tests for what will be required to qualify as ‘living in an acquired gender’. So it is critical that the Government clarifies what it understands the legal effects of holding a GRC are, where these have a potential impact on other people.

The consultation paper fails to clarify how acquisition of a GRC affects a person’s legal rights of access to single-sex services and spaces. Without knowing how acquiring a GRC affects a person’s legal rights, it is hard to see how people can give informed comment on proposals that will lower the barriers for access to a GRC and widen the eligible number and range of people. This should not be a hard question for the Government to answer, and to explain its reasoning clearly, if it has done the work it should have.

Whilst the Government states its support for the single sex exceptions in the Equality Act 2010, it is not clear how far it believes those exceptions can only be used in exceptional cases. It would appear that the Scottish Government is interpreting the provisions of the Equality Act as requiring individual by individual decisions on exclusion, rather than supporting policies that allow a service to make a positive choice to provide a woman-only environment that is based on physical sex.

The draft Equality Impact Assessment cites one academic paper to support the assertion that there is little evidence to justify ever applying a blanket exclusion. However, the paper draws the opposite conclusion to the one the Scottish Government cites it to support, and instead makes the case strongly for retaining single-sex spaces.

The Government proposes a new criminal offence of false declaration for those who seek to abuse the system of self-declaration. However, the bill does not provide a working definition of what ‘living in an acquired gender’ means. Therefore, it is difficult to see what would constitute a false declaration in relation to this or how this would be assessed by the courts. How de-transitioners could be protected from prosecution under these provisions is also unclear.

Its rationale for shifting to a system of self-declaration relies heavily on a desire to bring Scotland in line with ‘international best practice’. However, the consultation paper does not state which countries the Scottish Government considers to represent ‘international best practice’. The paper only discusses the application process in different jurisdictions and does not consider how the law applies in practice in specific settings; for example, what, if any exceptions or limitations are in place.

Note: We amended the assessment on 10 February 2020 to correct an error in the Table of Contents.