Against a backdrop of active debate about women’s sex-based rights, this blog reviews the manifestos for the five parties represented in the last Scottish Parliament, as well as those we could find for the other eight parties which are standing candidates in the eight Scottish Parliament regions.
We carried out a word search for both ‘gender recognition’ and ‘Equality Act’, given it is principally the conflict of rights in this area that has given rise to the debate on women’s sex-based rights. This conflict is also recognised by the Scottish Government, as shown in this note provided to Cabinet ministers on gender recognition in 2019, released last week under Freedom of Information –
“The Scottish Government’s starting position is one of equality and non-discrimination. However there are areas, across Ministerial portfolios, where there are potential conflicts between rights. These areas require careful consideration.“
Almost all the party manifestos also contain a range of policies targeted, whether explicitly or implicitly, at women. Our findings, therefore, should be read with that in mind. However, the results of our analysis indicate how each party is now approaching the specific issue of the relationship between rights based on sex and on identity.
Six parties make reference to ‘gender recognition’.
Labour, the Liberal Democrats and the Scottish Greens support what might reasonably be characterised as specific commitments to liberalise the Gender Recognition Act 2004 (GRA), widening in some way the eligibility criteria for those seeking to change their legal sex beyond the current requirement for a diagnosis of gender dysphoria and the need for an individual to ‘live’ in their ‘acquired gender’ for a period of two years.
All three parties also propose a further rethinking of the purpose of the Act, beyond enabling individuals to switch between recognition as male or female, and propose allowing people to be recognised in law as ‘non-binary’. (Although none indicate what analysis they have undertaken to establish the potential impact of introducing such policies on the comparator in sex discrimination cases, for instance.)
Only the Liberal Democrats and Scottish Greens explicitly support a commitment to reform based on self-declaration, with the other parties framing their proposals in broader terms, without ruling out other safeguarding mechanisms. The SNP favour reform to “improve and simplify” the process for changing legal sex, while Labour state they will “de-medicalise the process”.
Alba proposes a Citizen’s Assembly to consider GRA reform.
The Scottish Family Party supports wholesale repeal of the GRA.
Only two of the parties represented in the last parliament mention the Equality Act 2010. The SNP manifesto states that their proposed reform of gender recognition will “not affect the rights or protections that women currently have under the Equality Act”. Labour’s manifesto states that “the Equality Act 2010 will continue to frame our equality policies”.
Manifestos from Alba and the Scottish Family Party also refer to the Equality Act. Alba recognises that “women have the right to maintain their sex based protections as set out in the Equality Act 2010”. On the other hand, the Scottish Family Party proposes that some elements of the Equality Act should be repealed, for instance the sections on ‘harassment’ and positive action measures.
What does this tell us?
It seems fair to assume that the commitments made in the manifestos on these two areas of law reflect the state of internal debate within the different parties.
Given that the Conservative Party at Westminster have abandoned reforming the GRA so that individuals can change their legal sex by means of self-declaration, it is perhaps not surprising that their Holyrood manifesto makes no mention of gender recognition reform at all. In the last year, they have also made clear statements about their commitment to upholding the single sex exceptions in the Equality Act.
Both the SNP and Scottish Labour appear to acknowledge there is at least potential for a rights conflict here, but still seem to be grappling with how to manage that, with both signalling an intent to reform the GRA whilst continuing to support rights as enshrined by the Equality Act.
A commitment to reform the GRA, accompanied by the omission of any reference to the Equality Act in the Scottish Greens and Liberal Democrat manifestos, suggests that both parties refuse to recognise the existence of any potential conflict of rights in this area. It is perhaps not a coincidence that MSPs from both parties opposed an amendment to the Forensic Medical Services Bill in December 2020, which sought to guarantee victims of sexual assault the right to request the sex – not gender – of their medical examiner (SNP, Labour and Conservative MSPs all voted in favour of the amendment).
In addition, the Scottish Greens’ manifesto commits the party to “enshrining the Yogyakarta human rights principles into Scots law”. We wrote recently for Scottish Legal News about the potential harm to women’s sex-based rights which would follow from adopting the proposal in the principles to remove all recognition of sex in law.
The recently established Alba party has made its stance on women’s sex-based rights an early priority, so it is perhaps not unsurprising to see them focus on the content of their policy there, and rather than offer a specific set of suggestions on the issue of GRA reform, advocate instead that a Citizens Assembly be convened to consider the issue.
Arguing from a socially conservative position, the Scottish Family Party seeks repeal of both the GRA and elements of the Equality Act, including positive action measures that address women’s under-representation.
Where next for gender recognition reform?
Most of the parties whose manifestos contain references to gender recognition favour reform of one kind or another. Of the parties which do raise the issue, it is those expected to poll highest that leave more room to discuss and resolve potential conflicts of rights. How far reform is progressed without addressing the potential for any such conflict therefore appears likely to depend on the influence of the smaller parties.
The 17,000 responses to the Scottish Government’s 2019 consultation on gender recognition reform remain unpublished, despite the fact that the firm contracted to undertake the analysis had committed to delivering its final report in mid-March. A Freedom of Information response published last week revealed that Christina McKelvie, Minister for Older People and Equalities, told the Scottish Trans Alliance in January that the analysis would be published prior to the May election. This delay has placed the SNP in an advantageous position in terms of understanding wider public attitudes and concerns over GRA reform when developing its manifesto proposals, which may help to explain its reluctance to commit to a self-declaration model.
The Equality Act 2010 meanwhile remains a reserved issue, meaning that no party can advance any proposed reforms at Holyrood. It is worth noting however that the final report of the National Advisory Group on Women and Girls (NACWG) – established by the Scottish Government in 2017 – advocated “full devolution of equality legislation” to the Scottish Parliament. The SNP manifesto contains a commitment to extend the remit of NACWG and “continue to progress their recommendations over the course of the next parliament”. Although it does not explicitly propose that the Equality Act should be devolved, the terms of the manifesto leave open the possibility that the party may argue later that it has a mandate for seeking this.
The relevant commitments and links to the full manifestos can be read here.