This blog examines recent developments on gender recognition reform and how the Scottish Government appears to have broken its commitment to actively engage with a range of stakeholders ‘to identify the best and most effective way to improve and simplify the process’. The analysis shows that within the space of nine months, a fait accompli appears to have taken place, without any wider engagement, and that a Bill looking to introduce self-declaration is now imminent.
The manifesto commitment
The SNP manifesto, published in April 2021, promised a deliberative process for the final stage of GRA reform, ahead of introducing legislation.
‘In the next parliament we will work with trans people, women, equality groups, legal and human rights experts to identify the best and most effective way to improve and simplify the process by which a trans person can obtain legal recognition – so that the trauma associated with that process is reduced. We remain committed to making necessary changes to the Gender Recognition Act that arise from this work at the earliest opportunity.’ (emphasis added)SNP Manifesto 2021: 31
Speaking at the launch of the manifesto, the First Minister elaborated on this.
I am not proposing a third full-scale consultation … but given how polarised this debate has become … I think some period of discussion …to look at just exactly what we need to do to reform this legislation …would be sensible and appropriateThe Scotsman, 15 April 2021
This commitment promised a welcome move to greater openness, consensus-building and practical focus.
After the election
On 26 August 2021, campaign group Women and Girls Scotland wrote to the Scottish Government asking what action was being taken to progress the commitment to talk to women’s groups. They asked how the Scottish Government had worked with women regarding their concerns in relation to GRA reform since the election and, if this had not happened yet, what its plans were to do this, its timetable and which organisations it intended to engage with. The email, now kindly shared with us, asked the Scottish Government to ensure it engaged with groups representing women from diverse backgrounds and concluded by asking ‘that we are involved in any form of upcoming consultation with women’s groups’.
In a response dated 15 September 2021, they were told,
We have now consulted twice on the Bill – first on the principles of reform and then on a draft Bill and impact assessments. These have been two of the largest consultations ever undertaken by the Scottish Government. The consultation analysis gives a valuable and comprehensive summary of the range of views. We will continue to listen to and engage with interested parties in preparing the Bill for introduction.Scottish Government, correspondence with Women and Girls Scotland, 15 September 2021
Despite the reference to continuing to listen and engage, as far we can tell at that point there had been no meetings or other types of engagement between the Scottish Government and any groups which had raised concerns about the planned content of GRA reform since the close of the consultation in March 2020.
Surprisingly perhaps, there was no reference in the response to Women and Girls Scotland to the statement which had been included in the Programme for Government, published on 7 September. That had said:
‘Within the next year we will bring forward the Gender Recognition Reform (Scotland) Bill, removing the current medical requirements and reducing the time that applicants for gender recognition need to have lived in their acquired gender from two years to three months.’A fairer, greener ScotlandProgramme for Government 2021-22: 50
A meeting of the Non-Binary Working Group attended by the main LGBT organisations in Scotland was held on 16 September, the day after the response was sent to Women and Girls Scotland. The minutes for that meeting, later published on the Scottish Government website, show officials being even more specific than the Programme for Government about the timetable and the intention to keep to the Bill more or less as consulted on, saying:
‘The Bill will be introduced in February 2022 and it is unlikely that there will be big changes to the Bill.’Scottish Government Non-Binary Working Group, 16 September 2021
It therefore appears that by the time Women and Girls Scotland received their reply promising that the government would ‘continue to listen to and engage with interested parties in preparing the Bill for introduction’, the substantive decisions had already been made and planning was well-advanced , despite the terms of the manifesto and the fact that no further discussions with concerned groups had taken place since the election.
According to an FoI response issued to us at the end of December, since the election Ministers have only met with five government funded LGBT groups while Scottish Government officials have met with two public bodies: the Equality and Human Rights Commission and the National Records of Scotland, the latter of which itself reports to Ministers.
Justifying the processs
After the limited range of meetings was reported in January this year, the Scottish Government told BBC Radio 4’s Woman’s Hour:
We recognise the concerns raised by some women’s groups. As the freedom of information request states, the Cabinet Secretary has met with a number of organisations that requested a meeting on proposed reforms to the Gender Recognition Act. These are all independent organisations. No group that has requested a meeting about the bill has been refused. Further meetings with a range of organisations including those who’ve recently been in touch with a request will take place ahead of the bill being introduced to Parliament. Our proposals to reform the current GRA, which have been outlined in the draft bill published in 2019, do not introduce any new rights for trans people or change single sex exceptions in the Equality Act. We’ve now consulted twice on our proposed changes, first on the principles of reform in 2017 and then in 2019 on a draft Gender Recognition BillScottish Government statement to BBC Woman’s Hour, 5 January 2022 [emphasis added]
Similar comments have been made to other news outlets.
The only comment on this from among those organisations the Cabinet Secretary has met of which we are aware is from the Director of Stonewall Scotland:
There have been 2 public consultations. Over 15k responded to the 1st and 17k the 2nd. There will be a Bill which will go through Parliamentary scrutiny where those for and against will be able to submit evidence. The charge that consultation is not wide enough is nonsense…. When you also take into account the countless articles/comment pieces/media coverage which have been dominated by those opposed to trans equality and full of disinformation, the line that’s being peddled about lack of consultation is dishonest.Colin MacFarlane, Director, Stonewall Scotland, 5 January, Twitter
Most recently the Scottish Government has said:
‘Further ministerial meetings with a range of organisations, including those who have recently been in touch with a request, will take place ahead of the bill being introduced to Parliament’. (emphasis added)Scottish Government, statement to The Daily Express, Monday 11 January 2022
On the same day, in an interview for STV on Scotland Tonight, the First Minister commented further (emphasis added):
Interviewer: “The Gender Recognition Reform Act has caused significant division in your party, in your government indeed. Are you likely to offer a free vote on that when it comes to Holyrood?”
First Minister: “That would be a decision for my parliamentary group and they’ll decide that in due course. The plans, again these were plans in our manifesto at the election last year, the election that we won overwhelmingly, and we’ll set out the timetable for that legislation in the very near future. This is about not whether or not somebody should be able to legally change gender, that can happen already, this is about trying to ensure there is a process that allows that to happen that does not stigmatise, that does not traumatise trans people and that is much more dignified and respectful of their rights and I think that is something everybody should be very much of the view is a good thing to do. But of course there will be debates to be had as we go through the legislative process.”
Interviewer: “Do you think the Scottish public agree with you on that?”
First Minister: “Well actually, the Scottish public overwhelmingly re-elected the government on this manifesto commitment…”
Interviewer (interrupting): “Not this one surely?”
First Minister: “I think much of the polling evidence round this suggests that there is not opposition among the Scottish public to this as some may suggest there is”STV, 11 January 2022
The First Minister’s comments conflate the general, open-ended manifesto commitment to improving the process with the specific plans that the government decided to bring forward. The commitment in the manifesto to speak to a range of interest groups, including women, and develop final proposals which arise from that process, is no longer acknowledged. Debate in parliament once the legislation is introduced appears to be offered as the substitute.
Public opinion is a separate issue to the manifesto promise: but as it was raised, it is worth noting that opinion polls have, repeatedly, shown much stronger support for retaining some medical oversight of the process to obtain a Gender Recognition Certificate than removing it, as summarised here:
The government line implies the absence of other meetings so far has been due to a failure of the groups left out of the process to ask for those. We think it is unreasonable to place responsibility for fulfilling a manifesto commitment on what are almost all exclusively volunteer-run groups working on shoestring with no public funding, no inside knowledge of the planned timetable and no established access to government. It took For Women Scotland a year and repeated attempts from their first approach to obtain their only ever ministerial meeting, in February 2020. Although the Woman’s Hour statement describes the groups who have met the Minister as ‘independent’ they are all in receipt of substantial funding from the Scottish Government and have six- or seven-figure budgets and teams of paid staff, as well as regular opportunities to meet officials in forums such as the Non-Binary Working Group.
It also turns out that in any case that Women and Girls Scotland did approach the Scottish Government, in August 2021, to ask what work was underway and explicitly asking ‘to be involved in any form of upcoming consultation with women’s groups’. The response they were sent did not offer a meeting or indicate that the onus was on women’s groups to do anything further to ask for these.
Just before Christmas, we received the offer of a meeting with officials (scheduled to take place on 17 January), after submitting an options paper on GRA reform to Government on 14 December, and then, a week later, chasing a response to letter we sent in March 2020 setting out our continuing concerns, initially deferred for answer because of the pandemic.
Although the Scottish Government is now resting on the previous consultations and discounting the promise in the manifesto of further engagement, it has still not provided answers to the concerns or questions raised in the second consultation, including ones repeated from the first one. These include the legal effects of holding a Gender Recognition Certificate, the implications of opening the process to a much wider group of people, or the cross-border effects.
Further, while the Scottish Government has published a report summarising points made by those responding to the most recent consultation, the open-ended format in which responses were collected did not allow the consultants analysing the responses to provide any assessment of the balance of opinion among consultees, in contrast to the approach taken with the previous consultation in 2017. Both times, only the relatively small proportion of responses from organisations have been published: all those from individuals remain inaccessible. This may be one of the largest consultations the Scottish Government has held, but it is also one where those with an interest are unusually reliant on the judgements made by those analysing the responses. This is not a criticism of that work: the report provides plenty of space for critical comments, even if these seem to have had little influence on the government’s thinking to date. It is however a major limitation. For further analysis of the government’s handling of the consultation respones, see here:
With what now looks like a fait accompli in place, it is difficult to see either consultation as little more than a costly exercise in window dressing or that meetings held in the next few weeks are likely to affect substantially the content of the legislation. To do that would require the Scottish Government not just finally to open its doors, but to open its mind as well. Those with unanswered questions and concerns will take whatever chances are available to help that happen, but they will do so from a position of disappointment that a promising commitment in the SNP manifesto has not been honoured.
In the hope that there is still scope one way or another to obtain answers to the questions already raised here, below we bring together some of our published material in this area, followed by a package of suggested reforms.
Gender recogntion reform: problems and solutions
20 questions on GRA reform (October 2019)
In October 2019 we published twenty questions on how the Scottish Government expected a reformed GRA based on self-declaration to work in practice and the evidence base for reform. These were questions to which we judged the earlier consultation had provided answers that were contested or unclear, or not provided answers at all.
Draft Gender Recognition Reform (Scotland) Bill: how well were the questions answered?
The Scottish Government published its draft Gender Recognition Reform Bill in December 2019, and opened the Bill to consultation. In January 2020 we published our initial assessment of the Bill, against the above twenty questions. The analysis showed that the consultation paper accompanying the Bill answered five of our questions (but raised more questions in each case), and partially answered two. Thirteen questions remained unanswered. The assessment can be accessed here:
In March 2020 we submitted our response to the consultation. We argued that the Scottish Government proposals would change the fundamental purpose of the Gender Recognition Act: from a pragmatic response to medically-diagnosed distress to an entitlement to affirmation of identity. We also argued that the government’s belief that liberalising access to a change of legal sex in this way carried no potential negative impacts for women was poorly justified and implausible. The full submission can be accessed here:
Since then we have published a range of further material relating to gender recognition reform, which can be accessed here:
Options and opportunties
Most recently we published a paper discussing ways to meet commitments to update and simplify the act, without losing medical oversight.