Gender recognition reform: consultation and transparency

On 20 August 2021 the Scottish Government and Scottish Green Party published its Draft Shared Policy Programme. This stated:

“We will reform the Gender Recognition Act in a Bill introduced in the first year of this parliamentary session. This will ensure the process by which a trans person can obtain legal recognition is simplified, reducing the trauma associated with that process.”

No further detail was given as to what reform would involve.

The consultation

In the previous parliamentary session, the Scottish Government secured 17,058 responses to a consultation on a draft Bill on reforming the Gender Recognition Act, which ran from December 2019 to March 2020. These responses all remain unpublished.  A contract was let in the autumn of 2020, after some initial COVID-related delay, to an external firm to analyse the responses and produce a summary report.

Obtaining information on the response to the consultation

On April 8 we wrote to the Scottish Government to ask whether the government held any further information on the outcome of the consultation and to request sight of this. On 17 May we received as a response that the Scottish Government had “just received a final version of the analysis report and plan[ned] to start the process for publishing it shortly.” No further information was provided.

We did not appeal the refusal to provide information at that point, given the commitment to publish. Under the Freedom of Information (Scotland) Act 2002 information is exempt from release if it is due to be published within 12 weeks at the date the request is made

However, on 18 July, in response to another enquirer which was shared with us, the Scottish Government stated that it now intended to publish the analysis of the consultation “in due course” but was “unable to confirm the publication date.”

We wrote again to the Scottish Government on 22 July, noting that it was now 15 weeks since we had made our original request, and as the government had no clear immediate publication plan, asked it to revisit our original request and release the information it was holding about the outcome of the consultation.

On 29 July the Scottish Government responded that it was treating our letter as a fresh FOI request, with a deadline of 20 August, as we had missed the deadline for lodging an appeal of the original refusal (by 5 days). We wrote asking them to reconsider this position but received no response.

On 20 August the Scottish Government advised us that it was withholding the information as “we intend to publish both the analysis report and the responses from organisations and groups shortly.”

Where next?

The new Programme for Government is due to be announced on 31 August and is expected to include proposals for legislation on GRA reform. Those outside government will have had little or no opportunity to consider the analysis of the outcome of the consultation before being expected to react to the announcement, while those within government will have had over 3 months to do so, as well as having had access to the original responses since March 2020.

Reform of the GRA is one of the most sensitive topics currently facing the Scottish Parliament. The process behind any legislation brought forward will come under intense scrutiny. Ensuring as much openness as possible is one way to increase trust in a tense policy area.

Alongside others, we identified a range of substantial questions and issues which the consultation paper raised but did not answer. Before submitting our response we also met officials, which confirmed to us that key areas of concern were yet to be properly considered. A summary of our concerns and a link to our full response is provided below. We are not aware that the Scottish Government has contacted anyone who raised questions or concerns about the consultation paper, to explore those further. 

We have previously argued that the Scottish Government needs to play an active role in building consensus, to reduce tension round this issue. We still hope that it will do that. That will include not introducing legislation before having engaged further with those who previously expressed concerns about its plans.

It also means giving all the opposition parties reasonable time to consider the response to the consultation and to follow up issues with those who raised them and with government, well before any legislation is introduced.

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MBM response to GRA consultation March 2020

Summary of main concerns included in response: 

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. [Note: the judgment in a case in England in July 2021 concerning prisons reinforces the need to address this question.]
   
   
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.