Consulation on GRA reform: missing data, cost cutting, and delayed publication

The Scottish Government has now published the independent analysis of the responses to the consultation on the draft Gender Recognition Reform (Scotland) Bill. In total 17,058 responses were available for analysis, the vast majority submitted by individuals (16,843), with a further 215 responses submitted by organisations. Among the organisational responses, support for and against reform was around 50:50. The report however, provides no overall breakdown of where support lay for the 16,843 individual responses. Given that the individual consultation responses represent an enormous amount of work, much of it unpaid, this feels like a significant omission.

This blog looks at this the lack of a breakdown on the individual responses in more detail. We consider the possible limitations placed on the independent analysts by dint of the consultation design and cost cutting, and highlight contradictions in the explanation provided by the Scottish Government. Lastly, we consider some of the issues raised in the report, and the implications of the decision to delay publication for building consensus in a contested area of policymaking.

Missing data

The analysis report sets out the main arguments for and against the move to a statutory system of self-declaration for legal sex change, which are summarised in the following terms:

“Most respondents to the consultation tended to take one of two overall positions on the proposals. These two groups are described as being either broadly in support of, or broadly opposed to, a statutory declaration-based system. This reflects the nature of the proposals as they are referred to within the draft Bill, although respondents generally referred to their support for, or opposition to, self-declaration or self-identification. An analysis of comments made suggests that a small majority of organisations broadly supported changing to a statutory declaration-based system. Around 4 in 10 organisations did not support changing to a statutory declaration-based system and around 1 in 10 either did not take a view or their view was not clear.”

Scottish Government 2021: i

The report does not however, provide an overall breakdown of where support lay for the 16,843 individual responses. The Scottish Government has explained this omission in the following terms: 

“The first consultation showed that 60% of respondents were in favour of the reform. This second consultation was intended to take views on the draft Bill itself, and therefore a qualitative approach was taken, as such the responses cannot be broken down into percentages.

A specific interpretive analysis of group responses was undertaken to give an indication of the proportions in favour overall, and showed a small majority supported reform. It was not possible to do this for all 17,000 responses due to volume.

The consultation has now been analysed independently and has provided us with relevant and important responses on key aspects of reforms, such as the minimum age. The value in this consultation lies in the nuance of commentary and debate on a sensitive and complex issue, and this is reflected in the 82 page analysis report, not in a headline figure of for and against.

The consultation is not an opinion poll and as with any public consultation exercise, those responding generally have a particular interest in the subject area and are not a representative sample of the Scottish population.”

This explanation is inadequate on several counts. Firstly, it is not uncommon to provide numerical analysis as part of qualitative research. While the structure of the consultation document undoubtedly made this much more challenging, quantitative analysis was anticipated in the Invitation to Tender. The assertion that the consultation responses are not a ‘representative sample of the Scottish population’ is applicable to any government consultation, including the first consultation on GRA reform. That the findings would be self-selected was acknowledged in the Invitation to Tender.

Written consultation and the publication and analysis of responses are seen as a key part of Scottish Government’s engagement with stakeholders and the public. We are fully aware that respondents to consultation are self-selecting and that analysis of consultation responses should aim to identify the range of views submitted. We therefore expect the vast majority of consultation analysis to be qualitative in nature. However, quantitative analysis of closed questions can have benefits in identifying a balance of opinion and in assisting analysis through filtering responses to linked open questions.

Scottish Government, October 2020: 16

The decision to record the number of individual responses against each question in the first consultation and not in the second looks unbalanced. It leaves those in favour of a self-declaratory system with helpful figures to draw upon (based on the first consultation) and no comparable figures for the second consultation. That the Scottish Government quoted the percentages reported in the first consultation in its press release on the second consultation analysis report is a case in point. The decision also precludes any indication of how the debate may have shifted, as the issue gains wider political and public traction.  

While the Scottish Government state that the value of the report does not lie ‘in a headline figure of for and against’, the organisational headline figure was nonetheless cited in the Scottish Government press release and has featured widely in media reports.

It should also be noted here that there are significant differences in the resourcing and funding streams available to those organisations making up the headline figure, which make for an uneven playing field. Some organisations are heavily funded by Scottish Government. For example, the Equality Network/Scottish Trans Alliance, which has largely led on the campaign for self-declaration in Scotland, reported £527,027 income in 2019/20, of which £473,321 (90%) was from the Scottish Government. Other organisations are voluntary and unfunded, and/or rely on donations.

As a general principle, we think that public consultations should make clearer where organisations sit in relation to the Scottish Government and include details of government funding where applicable.       

Consultation design

The consultation paper asked five questions, each with a closed and open element. However, at Questions 1, 2, 4 and 5 the closed question simply asked if the respondent had any comments to make and, in practice, all comments were considered irrespective of the answer at the closed question.

Scottish Government 2020: 2

Whereas the first consultation allowed for both quantitative and qualitative analysis, using a simple agree/disagree (or similar) question format, followed by a free-text option (2018: Annex 2), the second consultation mostly asked whether respondents had any comment on each proposal (yes/no), followed by a free-text option. The only question that allowed for simple quantitative analysis was on whether the minimum age should be lowered (2021: Annex 2). Given that the consultation sought to elicit both quantitative and qualitative data, it is difficult to understand why the question format was changed to preclude basic quantitative analysis.   

First consultation on GRA reform: example of question structure and analysis of responses

Second consultation on GRA reform: example of question structure and analysis of responses

Cutting the budget

The original Invitation to Tender dated February 2020 anticipated 20,000 to 50,000 responses to the consultation and stated that a budget of up to £50k was available. Work on GRA reform was then paused due to the Covid pandemic, and Scottish Government issued a second tender in October 2020. By this stage, the consultation had closed, having secured 17,186 responses, and the budget was cut drastically, to the region of £22K to £27K. The contract award notice shows that the highest tender received for the work was £30,500.

Scottish Government February 2020: 20
Scottish Government October 2020: 22

A comparison can be drawn with the tender for the UK Government consultation on GRA reform, where the original costs were agreed at £50k, based on an anticipated 10,000 responses. While the final costs are not known to us (the UK consultation eventually secured over 100,000 responses) the resource enabled the UK research team to analyse around 860,000 free-text responses using manual and automated coding (King et al. 2020: Part 3).

Publication timing and finding a way through

“Those who saw a clear and pressing case for change often considered that the current approach is outmoded and discriminatory. Both through their own stories and more generally, respondents spoke of the detrimental impact the current approach is having on trans peoples’ health, wellbeing and life chances. Some of these respondents cited both international law and best practice in other countries in support of their case for change.

Other respondents took a very different view, namely that the Scottish Government has not provided sufficiently robust evidence to support its case for change and that the 2004 Act does not require amendment. It was frequently argued that the existing system provides important safeguarding measures, is compliant with both international law and human rights obligations, and meets European law. Far from being a minor change, the proposed reforms were seen as a fundamental change to encompass a larger and more diverse group of people than those originally envisaged by the 2004 Act.”

Scottish Government, 2021: iii

Despite limitations imposed by the consultation design and cost cutting, the thematic analysis presented in the final report appears comprehensive and documents a range of serious substantive issues that the Scottish Government needs to address if it is to secure any form of consensus during the legislative process. This includes the need to properly engage with those expressing serious concerns about the potential impact on women and girls.

Issues raised by respondents included a failure to address the interaction between self-declaration and the operation of single-sex exemptions under the Equality Act 2010, and a failure to define ‘acquired gender’, making it impossible for this to be demonstrated, or for the system to be regulated. Other concerns included: the risk of young people making a decision that they would later regret; a lack of proper provision for detransition; that social pressure would be placed on girls to accept boys who identify as female in single-sex spaces; practical problems for schools with respect to changing rooms for 16 and 17 years olds; whether people born in Scotland and living in other parts of the UK could obtain a Scottish GRC based on self-declaration, or if people could qualify by moving to Scotland for a relatively short period; and whether Section 22 privacy provisions might be used by anyone wishing to conceal aspects of their past.

The consultation report also underscores the weak evidence base for reform. Respondents noted that the introduction of declaration-based systems in other countries, as cited in the consultation paper, was recent, and that the Scottish Government had not provided any robust comparative data from those countries, nor any detail on how self-declaration operates or its impacts (see further here and here). It was also noted that problems in other jurisdictions were now coming to light, for example within women’s prisons (see here).

“Many respondents who were broadly opposed to a statutory declaration based system argued that the impact assessments are not thorough, comprehensive or evidence-based and that they are inadequate and not fit-for-purpose.”

Scottish Government 2021: 46

Respondents described the impact assessments as not fit-for-purpose. It was noted that two of the academic papers cited in the Equality and Impact Assessment (EQIA) drew highly offensive analogies that respectively compared sex-segregated facilities with racial segregation,1 and likened the bodies of trans women to other “non-normative” people, including women after breast removal surgery after cancer. Another paper referenced in the EQIA did not support the conclusion purported by the Scottish Government, whilst other cited research on detransition was clearly out of date. It was also noted that the EQIA failed to cite a large-scale Swedish study which found that male-to-female transitioners were likely to retain the same risk of male-pattern criminality both in relation to crime generally, and to violent crime. Other omissions included a lack of evidence on the experienced impacts of trans inclusion in services, and a failure to consider the psychological harm to women by the presence of male-bodied people. Nor had the EQIA acknowledged that data was not gathered in a way that would allow the issues raised to be examined, given that crime recording is now undertaken on a self-identified basis.

More generally, it was suggested that the Scottish Government had mistakenly interpreted absence of evidence of negative impacts as evidence of their absence and failed to produce any evidence to support its view that the proposed changes would not have a negative impact on women and girls.

Of particular significance at this stage in the policymaking and legislative process, the report also flags up concerns that the Scottish Government has not considered or put forward any alternative options for reform. As such, it is disappointing that instead of allowing stakeholders to fully digest the findings, to address the issues outlined above (and others) and to think about finding a way through the current impasse,2 the government chose to delay publication for more than three months, thereby limiting the opportunity for engagement and adding to the febrility of the debate.


1 See Eckes, 2017: 259, 260 below:

“Unfortunately, this is not the first time safety issues have been debated as they relate to segregated restrooms. When public restrooms were being racially integrated in 1957, according to Scherer (2016), one newspaper asked “[w]ill the [W]hite girls be forced to take their showers with Negro girls?” These concerns were purportedly related to the “high venereal-disease rate among Negroes …” (p. 33). Similar to the arguments made in the 1950s, the current debate is also linked to discriminatory practices in schools. On this note, there is no evidence that any transgender student has tried to assault another student or created any such safety hazard in a restroom. Assuming that there is a future incident, it would still be no reason to ban transgender students from using the restroom that aligns with their gender identity….

Some also argue that tradition demands that we continue to segregate students in restrooms based on their sex assigned at birth. Arguments related to tradition were made in the recent marriage equality debate (e.g., we should oppose same-sex marriage because of our long tradition of doing so). On this note, our country has also had a long “tradition” of slavery or denying women the right to vote. To be certain, there are some traditions that are worth preserving and some that are not. These privacy, safety, and tradition arguments are without merit; it appears that the objections are really related to simply having a transgender student in the restroom.”

Eckes, S. (2017) The restroom and locker room wars: Where to pee or not to pee, Journal of LGBT Youth, 14:3, 247-265, DOI: 10.1080/19361653.2017.1324345

2 See for example here:

Our response to the second consultation on GRA reform can be accessed here:

50Government wishes to weaken existing protections for single-sex spaces and services, it was argued that the burden of proof is on the Government to produce robust evidence that the change will not reduce privacy, dignity and safety for women.•Fails to analyse potential impacts arising from the likelihood that a GRC will enhance a person’s legal rights of access to single-sex provision and the likely increase in both the number and the range ofpeople who have a GRC.•Fails to consider psychological harm perpetrated on women by the presence of someone who is male-bodied.•Fails to consider impacts on lesbians and gay men, including by the erosion of understandings and provisions based on same-sex, not same-gender, attraction.7.28The Scottish Government’sview that there is lack of evidencethat including trans women in women-only services and spaces has negative impactswas challenged. Points raised included that:•There is a lack of any evidence around the actual experienced impacts of transinclusion in services.•Absence of evidence is taken to mean evidence of absence and there is no acknowledgement that data is not gathered in a way which would allow the issues it raises to be examined.•The suggestion that ‘lack of evidence around the actual experienced impacts of trans inclusion’ is supported by the Gottschalkpaper mentioned in the EQIAwas disputed since, it was suggested, the authordraws the opposite conclusion to that reached bythe Scottish Government.357.29With respect to crime and the potential impact on the prison systemit was argued that, since any crimes committed by trans women are now recorded as women’s crime, it is impossible to find evidence within available data that trans women still pose a male level of risk towards women and girls. Under a declaration-basedsystem, it was suggested crimes committed by non-trans men masquerading as being trans would also be recorded as women’s crime