We have submitted our response to the Scottish Government’s consultation on on GRA reform. Our full consultation response is here:
We do not support the Scottish Government proposal for statutory self-declaration for a change of legal sex, which removes all medical gate-keeping. This changes the fundamental purpose of the Gender Recognition Act (GRA): from what is currently a pragmatic response to a particular form of medically-diagnosed distress; to an entitlement to affirmation of identity, and the translation of that affirmation into a change of sex in law.
The Scottish Government’s belief that liberalising access to a change of legal sex in this way holds no potential negative impacts for women is poorly justified and implausible. The proposed shift in the purpose of the GRA means that the draft Bill takes in a larger, more diverse group of people than the present Act. It is not, as often presented, a simple administrative reform. The existence of “sex” as a protected characteristic under the Equality Act 2010 means that reform is not simply about a person’s own individual relationship with the state, but also affects other people. The removal of medical evidence in particular broadens the category of people entitled to change their sex in law. It also makes the process more open to abuse. Altogether, this raises issues of privacy, dignity and safety for women and girls.
Overall, we think that the policy-making process for GRA reform to date has been inadequate and that there are significant gaps in the evidence base. From the start the Scottish Government has proceeded as if the only alternative to the status quo is a fully de-medicalised self-declaration model. It has not analysed alternative options for meeting concerns raised about the current process. It has not recognised that an argument about the detail of the application process has been conflated with an objection in principle to any medical assessment, and with the desire for a fundamental rethinking of GRCs to embrace a much larger group, for a different purpose than the one agreed in 2004.
Our main concerns are summarised below, and expanded on in the main body of the submission.
1. Lack of legal clarity: The Government has not clarified how acquiring a Gender Recognition Certificate (GRC) and so changing legal sex changes a person’s legal rights of access to single sex services and occupations under the Equality Act 2010.
2. Lack of clarity on the operation of single-sex exemptions: The consultation does not make clear whether the Government thinks powers under the Equality Act 2010 which can be used specifically to exclude GRC holders from single sex provision should operate on an individual case-by-case basis, or on a policy basis, or how readily these can be used. Without clarity on this and the above point, it is not possible to assess the impact of the draft Bill on single-sex provisions.
3. Lack of key definitions: The draft Bill does not define ‘acquired gender’, aside from a circular reference to the ‘gender in which a person is living’. The removal of all gatekeeping means that GRC applications will rest wholly on a person’s self-declared commitment to a concept that has no clear definition in law.
4. Failure to explain clearly how the nature of the GRC holding population would change: The Government describes the proposals as though there would be no change to those able to apply for a GRC, but removes the requirement for a diagnosis of dysphoria, and the need to satisfy a specialist panel that a person has been socially transitioned for at least two years, and replaces these with only a self-assessment of three months’ social transition. The government’s assumption of a ten-fold increase in numbers in these circumstances, but no change to the range of people entitled to a GRC, is implausible.
5. Inadequate safeguards: The draft Bill contains two safeguards, both of which are weak: a legal requirement to have “lived in the acquired gender” for three months, and a criminal sanction for false declaration. As ‘acquired gender’ is not defined, it is difficult to see what would constitute a false declaration related to this, or how this would be assessed by the courts.
6. No provision for possible de-transition: The draft Bill contains no provision for what appears to be an increase in the number of people wishing to de-transition to their birth sex. This is particularly relevant to young people as the evidence suggests this group is most likely to apply for a GRC under self-declaration.
7. Too little consideration of the risks of lowering the age: The significance of permanently changing legal sex cannot be underestimated and is not comparable to other rights acquired at 16 years (for example, voting in Scottish election, or even marriage, which does not require a permanent commitment in law and divorce is a clearly defined option). Medical practitioners have also expressed concerns that removing medical gatekeeping and affirming gender identity may increase the risk of medicalisation.
8. Under-scoping of potential UK-wide effects: There are cross-border anomalies as a result of the different paths now being taken in Scotland and Westminster, as reform in England and Wales has been paused. People born in Scotland and living in other parts of the UK could obtain a GRC by self-declaration, or people could also qualify by moving to Scotland for a relatively short period. Those granted a GRC using self-declaration in Scotland will have the same rights when in other parts of the UK as any other GRC holders.
9. Over-reliance on assertions of ‘international best practice’ (IBP): Although alignment with IBP is cited as a reason for reform, the consultation does not present evidence on how the law operates in other countries and the government has admitted it has not been able to find research into the impact of such laws on women. We think that the Scottish Government needs to look more critically at the precedents legislated for in other countries and to consider how gender self-declaration laws have gained traction across multiple jurisdictions, within such a limited time-frame. Recent evidence published on behalf of international campaigners explaining the strategies they have used to help secure reform suggests that legislative change was actively kept ‘under the radar’ in some countries and latched onto more popular reforms, such as equal marriage.
10. Poorly evidenced assessment of impacts on women: The draft EQIA for sex both fails to understand and misrepresents the potential negative impacts on women of the proposals. Specifically the EQIA fails to analyse potential impacts that flow from (a) the likelihood that a GRC enhances a person’s legal rights of access to single sex provision and (b) the likely increase not only in the number but also the range of people who have a GRC. The draft EQIA repeatedly takes absence of evidence at face value to mean evidence of absence. It does not acknowledge that in almost all settings data is simply not gathered in a way which would allow the issues it raises to be examined (for example, police recording practices). It fails to recognise that within the academic literature a large amount has been produced from within a school of thought that supports self-declaration in principle, while the resources and opportunity for researchers to obtain funding for and publish work from other perspectives has been far more limited. It does not acknowledge or discuss how this may affect the available evidence base and specifically relies substantially and uncritically in the draft EQIA on secondary assessment and analysis of the evidence by authors who clearly come from a theoretical perspective strongly disposed to support self-declaration, and misunderstands those who do not.
Building consensus on gender recognition reform
In February 2020 Cabinet Secretary Shirley-Anne Somerville stated that the Scottish Government aimed to build “maximum consensus” on its proposals. However, the consultation has exposed increasing levels of concern about the proposals. The ex-SNP Head of Communications Kevin Pringle has recently argued that reform should be put on hold, an opinion which has been echoed by other observers, both from within the SNP, across the political spectrum and beyond it. On the weekend of International Women’s Day, a public protest was held outside the Scottish Parliament.
To build consensus, the Scottish Government will need to provide much greater clarity on key concepts, in particular how a GRC affects a person’s legal rights of access to single-sex services and spaces, and how the GRC holding population is likely to change. This would allow the Government directly to address concerns that implications for women’s safety, privacy and dignity are being misunderstood and overlooked.
The Government also needs to consider alternatives and allow other options for meeting concerns about the current GRC application process to be considered, and better engagement with diverse viewpoints is needed. While the Cabinet Secretary has recently met with some of those with concerns about reform, this should have happened much earlier during the policy development stage.
It is highly unlikely that consensus will be secured based on the current approach to reform. While legislation could be passed within the current parliamentary term, this is unlikely to settle what is a controversial area of political and policy debate. Proceeding on the basis of the government’s current analysis carries a strong risk of legislation that is under-prepared and vulnerable to challenge, with collateral consequences that government and parliament would not intend.
To avoid this, the Scottish Government could instead go back several stages, and secure cross-party support for a fully transparent process to review existing gender recognition legislation.
This should start from a commitment to upholding rights under the European Convention on Human Rights (ECHR) equally for everyone, with no hierarchy of protected characteristics, and involve properly from the start the full range of interests and perspectives. The process should be based on addressing clearly scoped specific objections to the status quo, distinguishing between practical objections and objections of principle. This would seek to establish a shared position on the effect of current law, particularly the interaction of the GRA and the Equality Act, an agreed evidence base, and agreement on the purpose and intended beneficiaries of the GRA. It could then explore and formulate a range of policy solutions, not necessarily limited to legislative issues, so that any change is based on a secure consensus.