In an interview with STV broadcast on 20 February 2020, Cabinet Secretary Shirley-Anne Somerville stated that she is “absolutely determined” to press ahead with reforms to the Gender Recognition Act 2004 (GRA) to allow a person to change their legal sex based on self-declaration alone. At the same time, the Cabinet Secretary stated that she believes that reform can be completed by the 2021 Holyrood election, and that she wishes to build “maximum consensus” around the proposals.
The consultation on reform has 17 working days left to run, at the time of writing. There does not seem to be much prospect that a version of change will be identified by mid-March that people from a range of perspectives feel they can support. The hoped-for consensus seems more likely to be around the government being right. That would be consistent with earlier comments by the First Minister, who has stated that the Government is seeking, in its draft legislation, “to convince those who have concerns about the issue that there is not a tension and inevitable conflict between women’s rights and trans rights” (our emphasis, SP OR 16 January 2020 col. 15).
The analysis below suggests that in practice there is little, if any, evidence to indicate that the Scottish Government is seriously engaged in building consensus around its plans for reform. Instead, it appears that the Scottish Government is still hoping that making repeated statements of its belief that there are no significant unresolved issues will achieve agreement on its proposals.
Building a consensus is by definition a process of bringing together people who do not start out agreeing with one another. Below we suggest a number of steps the Scottish Government should take in order to achieve consensus.
Getting to Yes, one of the best-known short handbooks on reaching agreement, argues that one of the fundamental elements of achieving that is clarity about what positions people are coming from. As a starter, the Scottish Government needs to provide much more clarity on its proposals. On 6 January 2020 we wrote to the Cabinet Secretary with a list of basic questions related to the consultation proposals (see Annex 1). These included clarification on key definitions, for example, what is meant by living in an ‘acquired gender’, and crucially, how acquiring a Gender Recognition Certificate (GRC) affects a person’s legal rights of access to single-sex services and spaces. As of 21 February 2020, we have not received a reply to our questions. Comments on social media suggest that other queries remain unanswered from as far back as December. A failure to respond to basic questions within the standard twenty-day period suggests that the Government is struggling to provide answers to questions the consultation paper itself should have anticipated and dealt with.
The Scottish Government also needs to explain more precisely why it believes the concerns and risks raised thus far are misplaced. It is not helpful that the Equality Impact Assessment (EQIA) produced by the Scottish Government appears in places to misunderstand core arguments being advanced by those challenging the proposals. Understanding the position of people who disagree with you is another essential part of consensus building. The EQIA also omits key evidence in relation to the impact of allowing males into female-only spaces (see here: paras. 4.20 to 4.22), fails to acknowledge the potential for self-exclusion, and does not recognise the limitations of current criminal justice recording practices (which preclude recording clearly separate data on sex and gender identity).
Creating consensus requires genuine and meaningful engagement with those who hold a different point of view. Under the Public Sector Equality Duty, the Scottish Government also has a statutory requirement to foster good relationships between groups of people with different protected characteristics.
For Women Scotland have documented their difficulties in trying to secure a meeting with the Cabinet Secretary, who took in excess of three months to receive a reply that stated “Due to pressures on the Cabinet Secretary’s diary, she is not able to meet with you at this time.” While the consultation paper states that officials met with “a member of Forwomen Scotland”, the organisation has objected to this as a misleading statement. By way of contrast, when the Scottish Government was consulting on reform of hate crime legislation in 2018/19, officials held ten events around Scotland for members of the public to feed in their views on the proposals. The Government is also yet to schedule a single event that enables those with differing views on GRA reform to come together.
While the Cabinet Secretary has recently agreed to meet with some of those who have concerns about reform, this is coming very late in the process and against the backdrop of Ministerial statements that make clear that the Government has made up its mind on the central policy (the removal of any medical criterion for a GRC, as the Minister repeated in the STV interview) and plans to legislate by the spring of 2021. These discussions should have taken place before ahead of the consultation, during the policy development stage.
Building consensus requires flexibility and a willingness to consider different options. There are a range of alternative approaches that the Scottish Government might have considered as part of a strategy to bring people together. These might have included taking action to address waiting times for access to specialist services, and providing funding for additional spaces and facilities to ensure that the rights of all groups are respected, without conflict. The fee for a GRC application (currently £140) is set by secondary legislation and could be lowered by the Scottish Government. The Scottish Government could further explore the role of the Gender Recognition Panel (GRP), and whether the requirements for evidence, particularly of medical treatment, could be simplified under existing law. To this end the Scottish Government could look to update or repeal Section 3(3) of the current Act, which sets out what appears to be an ambiguous requirement to provide evidence on medical treatment (over and above a diagnosis of gender dysphoria). That could be done separately from any wider reform. Or the Scottish Government could have looked at replacing the role of the GRP with a supporting statement from the applicant’s primary medical practitioner. As proposed in the original draft Bill in Ireland, this would have retained a medical component, but without the requirement to produce such detailed personal information. That might have addressed concerns from both sides: about the loss of any medical criterion for a change of legal sex, and concerns about how much detailed personal disclosure is required from applicants.
A recent Freedom of Information response confirms however that the Scottish Government did not consider proposing a reformed system of legal gender recognition that retained the requirement to provide medical evidence. It also appears that the Scottish Government has not undertaken its own analysis of the current operation of the GRP, or considered simplifying its role. Instead from the very start the Scottish Government has put its weight behind a model which removes any role for the GRP and any medical criterion, as the only basis on which the GRA should be reformed. It therefore cannot show its workings, because there are none, beyond accepting without any evidence of detailed scrutiny both the problem and the solution presented to it by advocates of self-declaration.
The Scottish Government therefore now finds itself in a position where it cannot clearly explain why it has chosen this particular route, rather than any other reform options. This is a very difficult position from which to bring people together.
Building a consensus is not an overnight process. From one perspective the process feels extremely protracted: advocates for self-declaration have been in discussion with Government since soon after the 2016 election. They note that the first consultation was two years ago. Some of the sub-legislative moves to self-declaration have been in place for even longer. For instance, the current transgender prisoner policy was put in place by the Scottish Prison Service in 2014.
These discussions did not however reach very far beyond a relatively small world of policy makers and advocacy groups, until the public consultation began attracting wider attention in early 2018. Even since then, people with concerns have not felt as free to voice those objections. Equally to the point, as noted above, those in disagreement with the Government have not had such an open door to Ministers and civil servants, right up to end of 2019.
Yet the plan is that a new Act will be agreed before the Parliament is dissolved ahead of the 2021 election, around 12 months after the consultation closes in mid-March. Into this period must be fitted: the analysis of consultation responses, including the Government considering for the first time (by its own account) any evidence challenging its view on the possible impacts on women; filling what appear to be clear gaps at present in the legal scheme, even on its own terms; finalising a bill text; obtaining Cabinet clearance to introduce that, which normally involves some quite demanding internal processes; and then the full Bill process itself, including the Stage 1 evidence gathering , which will be the Parliament’s first chance to look at the Government’s plans. That does not leave much space for consensus building, which rarely works well against a ticking clock set by one side.
Proper consensus building is an art, and most of the obvious things which make it possible have not yet happened here. They still could, but it is hard to see how given the Government’s insistence that it intends to push forward with legislation – the most contentious part of which (the loss of any medical criterion at all) has already been put beyond discussion. The history to date, the timetable being proposed, and the First Minister’s earlier comments suggest that in the Government’s mind creating consensus here does not mean a commitment to the sort of process envisaged in Getting to Yes. Instead, it is a way of expressing the idea that if the Government puts more effort into repeating its beliefs, concerns on any scale will melt away, at least for enough MSPs.
That might yet succeed as an approach to getting legislation on the statute book by March 2021. It would not however be a way to make changes to the law on gender recognition that are well-rooted in the achievement of a secure consensus.