GRA Reform: Meeting with Scottish Government officials 9 March 2020

On what now seems like a lifetime ago, 9 March, we met officials from the Scottish Government to discuss the consultation on the draft Gender Recognition Reform Bill. Our meeting was with a senior official responsible for this area and the policy team leader.

The agenda

We wrote in advance, so that none of the issues we raised would come as a surprise.  Our full letter is here.

The main areas we asked to discuss were:

• the Scottish Government’s understanding of objections to its proposals;
• the Scottish Government’s understanding of the operation of Schedule 3, paras 26 and 27, and Schedule 9, para 1(1), and separately Schedule 3, para 28 and Schedule 9 para 1(3), of the Equality Act 2010 for different groups;
• the Scottish Government’s definition of “trans people” as used in the consultation paper;
• what the Scottish Government understands “living in the acquired gender” will require;
• what appraisal there has been at any stage of alternatives to the status quo for acquiring a GRC, other than ones based on self-declaration with no medical criteria;
• what the Scottish Government envisages would happen if a person detransitions;
• the Scottish Government’s view of Dhejne et al’s (2011) Swedish cohort study findings on offending rates;
• how the Scottish Government is interpreting the absence of evidence from other nations that have introduced forms of self-declared gender recognition;
• whether the Scottish Government is consulting on the principle of the Bill or only on the detail of implementing the policy of self-declaration; and (if the latter) how it will treat responses insofar as they address the former.

The meeting

We touched on most of the points above and a few others.

At the start of the meeting we said that we wanted to be part of making the reform process more transparent. We therefore intended to do as we had with the Chief Statistician, and to write afterwards with points from the meeting we felt it was useful to put on the record, and to publish our letter. Officials asked if they could sign off what was going to be published.

We offered officials the chance to ask for any part of our letter to be redacted if they felt it was inaccurate and when we wrote on 11 March, with our account of the discussion and some follow up questions, we asked if they could let us know any redactions they wanted to make by 20 March.

Things have of course since moved on in ways none of us expected even three weeks ago, and the Scottish Government has written today to advise us that

As you will be aware, the Scottish Government’s focus now is on tackling the Covid-19 pandemic and other work is being deprioritised.   Therefore, we do not plan at this stage to send a detailed reply to your letter but we will pick this up after the current emergency has passed.

This is wholly understandable in the circumstances.

We have therefore now written a briefer note of the discussion, given that the GRA work remains technically ongoing, if delayed, and so the issues we discussed remain live and of interest. A recent press article suggested work had been paused for the foreseeable future but the formal position at least appears still to be that the Scottish Government intends to pursue GRA reform at some point (see for example the terms of a 29 March FoI response to another person).

We have aimed to remove anything which we anticipate there could be any objection to sharing, as an account of what was said to us. Please note however that this is of necessity not an agreed minute. Some of the information provided to us during the discussion is also referred to in our response to the consultation.

Our summary note of the points we discussed is below.

Summary of 9 March meeting with Scottish Government officials

1. Scottish Government understanding of counter-arguments

We asked what the Scottish Government understood the main objection to its proposals for self-declaration to be and officials outlined their understanding.

We noted that we intended to use our response to set out in detail why we believe the proposed changes would introduce substantial new difficulties for the operation of single sex services, spaces and occupations, compared to the current situation, due to the way in which they can be expected to change the size and nature of the GRC-holding population.

2. Lack of clarity on legal rights

We noted our concern that the Scottish Government did not appear able to provide a clear answer to the question of whether a person who acquires a Gender Recognition Certificate is afforded any new legal rights which have potential impacts on other people.

We discussed the question of the legal rights afforded by a GRC both in general, and in relation to the placement of prisoners. In relation to prisoners, we referred to Ministry of Justice policy whereby the discretion available to the prison authorities is fettered in situations where a person has a GRC, and noted that this is based on case law (see: (R (on the application of AB) v Secretary of State for Justice and another [2009] EWHC 2220 (Admin), [2009] All ER (D) 28 (Sep)).

Officials noted that the Scottish Government took a different position from the MoJ. This was consistent with a statement made by the Cabinet Secretary of Justice in January. [Note: our follow up letter seeks clarification on the basis for that difference of interpretation, and how some points and sources mentioned by officials are seen as relevant.]

We discussed whether in the Scottish Government’s view people who have always had a male birth certificate but are covered by s7 of the Equality Act 2010 are legally distinct from people who have a GRC that designates them legally female, for the purposes of Schedule 3, paragraphs 26 and 27 of the Equality Act. We noted the recent article by Julius Komorowski in the Journal of the Law Society Scotland: the Scottish Government was aware of this piece and of a recent briefing note produced by solicitor Rebecca Bull. Officials did not feel able to offer a view on this at the meeting.  [Note: our follow up letter picks up this discussion].

3. Definition of “trans people”

We discussed what the Scottish Government meant by the term “trans people” in the consultation paper, and were told that it was intended to mean any people for whom “lived identity does not correspond to birth sex”. [Note: our follow up letter seeks clarification of how the government defines “lived identity” and how far this definition does and does not overlap with the protected characteristic of gender reassignment, and notes that this definition appears to go much wider than the group of people entitled at present to apply for a GRC, so that the consultation paper was misleading in stating without qualification that “trans people” have had the right to change their sex in law since 2004.]

4. Exploring alternatives to self-declaration

We asked whether the Scottish Government had looked at any alternatives to self-declaration that retained medical gatekeeping, and were told it had not. We also asked whether the Scottish Government had had any discussion with the Gender Recognition Panel, and were told it had not.  We were also told that setting up a Scottish tribunal/panel to oversee applications was felt to be an expensive option.

5. De-transition

We asked about the lack of any provision for de-transitioners in the draft Bill and officials noted that it was expected that people would follow the same procedure in reverse. Officials suggested that detransition was rare. We suggested that the current numbers are unreliable, that such cases were likely to increase with the application process for GRC being changed, and that in any case rarity was not a sufficient reason not to have a provision. Officials noted that there was some specific provision in the Irish legislation.  [Note: our follow up letter asks why this precedent was not seen as relevant for the draft bill.]

6. Evidence on male-pattern offending

We raised the Swedish cohort study by Dhejne et al. (2011) and asked why this is not referenced in the draft Equality Impact Assessment (EQIA) in considering impacts on sex as a protected characteristic. We disputed the reading of this research offered to us, and the weight placed by government on comments made in a later interview by the lead author, and argued that it had been incorrect to dismiss it as irrelevant to the EQIA. Asked about the relevance of this research to the debate, we noted our view that if the government intends to change law and practice in ways which increase the number of people born male in women’s spaces, the burden of proof rests on it to demonstrate it is not introducing new risks in so doing, and that in our view the findings of this research require to be properly engaged with in that context. [Note: more is now available on the Scottish Government’s approach to this research as an FoI response.]

7. Alternative views from transitioners

We asked if the Scottish Government had undertaken any specific work to ascertain the views of people who had transitioned, particularly those who had gone through the current GRC application process, who disagreed with self-declaration. Officials noted that engagement with people in this category had been limited to receiving some responses from them in the previous consultation. We encouraged the Scottish Government to ensure that it engaged actively with a wide range of views from those who had transitioned.

8. Approach to consultation responses

Officials confirmed that the Scottish Government would consider responses which engage with the principles of the draft Bill, and not only those considering the detail of the Bill.

We discussed the circumstances in which responses will be redacted or not published where individuals are named. We found the response to this question less helpful than we had hoped, with references even to individual cases which had been widely reported carrying a risk that a whole response would be withheld, on grounds of privacy. Officials noted that there would be resource implications in applying specific redactions. We made the point that withholding entire responses risked raising issues of reasonableness and proportionality. We said that a refusal to publish particular responses in total, rather than redacting specific references if felt necessary, could carry reputational implications for organisations and individuals. It would also of course, make whole responses inaccessible to a wider audience.

[Note: In our follow up letter we noted a general concern about the Scottish Government’s approach to building an evidence base around its proposals, given that: criminal justice recording practices mean consultees cannot refer to data from published statistics; the Government has rejected as relevant the only piece of robust quantitative research in this area; and the Government position on whether it will publish consultation responses that reference relevant individual cases remains unclear.  We suggested that the Scottish Government should publish a statement on how it intended to deal with redactions and publication, with clear examples of what will and will not be published.]

9. Later stages

We noted that we expected there to be substantial parliamentary interest in any legislation brought forward.

[Note: In our follow up letter, we left open that we would come back to officials on a number of points we had raised in advance but which there was not time to cover during the meeting.]