Gender recognition reform and unanswered questions

This blog records our meetings with the Scottish Government about reform of the Gender Recognition Act (GRA) and our associated correspondence. It shows that despite two public consultations, both of which received an unusually large number of responses, the Scottish Government remains unable to answer fundamental questions about its proposal to introduce the self-declaration of sex in law.

With a draft Bill expected within a matter of weeks, we do not believe that the Government understands what it is doing here, has adequately assessed the risks, or engaged properly with the responses to its consultations. This conclusion is based on the exchanges described below, supplemented by feedback from others who have met the Minister or officials in the past month. As such, we agree with the EHRC’s recent statement that “more detailed consideration is needed before any change is made to the provisions in the Act.”

MBM letter to the Cabinet Secretary for Social Security and Older People (6 January 2020)

In January 2020 we wrote to the Cabinet Secretary for Social Security and Older People in relation to the Government’s second consultation on GRA reform, seeking answers to a series of substantial questions which the consultation did not address clearly. The letter can be downloaded here.

Request for meeting with Scottish Government (11 February 2020)

On 11 February 2020 we wrote to the Director of Justice, asking for a meeting to discuss the consultation paper further. We also attached our initial assessment of the proposals contained in the draft Gender Recognition Reform Bill, and a briefing paper by employment discrimination lawyer Rebecca Bull, on the relationship between the GRA and the Equality Act 2010.

Scottish Government response to our questions on the consultation (21 February 2020)

On 21 February 2020, we received a response to our letter to the Cabinet Secretary for Social Security and Older People. It can be accessed here.

At this point most of our questions remained in need of adequate answers. In particular:

• Although the Scottish Government was estimating a minimum ten-fold increase in the number of people applying for Gender Recognition Certificates (GRCs), it appeared unable to see that its plans would make GRCs available to a large group of people currently ineligible to apply for one. 
• It could not clearly explain the basis of its belief that acquiring a GRC would give a person no new legal rights of access to single sex services. Nor could it explain why its view appeared to differ from that of the UK Government, as expressed in the Ministry of Justice transgender prisoner policy, which in turn cites case law.
• The Government struggled to identify how a false declaration might be demonstrated, offering only scenarios of a person “boasting” they had made a false declaration, or a spouse or partner giving (unspecified) evidence that this was the case.
• The Government had not engaged with a potential tension between making provision for de-transitioners and provisions criminalising a false declaration, and was relying on de-transition being too rare a phenomenon for this to be an issue.
• The Government could not point to any detailed analysis it had undertaken of the law, and its application in settings such as hospitals, schools and prisons in other jurisdictions it considered to represent ‘international best practice’, resting instead on limited, generic information from Ireland.

The Scottish Government was clearer that no minimum period of residence in Scotland would be set for those wishing to apply for a GRC, and that the general broad legal test for ordinary residence would apply, which could include relatively short periods. However this raised questions about how wider use may be made of a change to the law in Scotland.

They were also clearer that a notary public who suspected someone of seeking to make a false declaration would have ways of registering concern and that in some cases it might be possible to refuse to grant a GRC, based on reported concerns about a possible false application. That still however left unclear what sort of evidence might be relevant here.

MBM letter to officials ahead of meeting (3 March 2020)

Ahead of our meeting with officials, we set out a list of points that we hoped to discuss, including questions that the Scottish Government had failed to answer in its written reply to us.

MBM meeting with officials (9 March 2020)

We met with officials on 9 March 2020. Following the meeting, we sent a letter which summarised the discussion, setting out our ongoing concerns, and asking for clarification of a number of points. We wrote a short account of the meeting here. The full letter can be downloaded here.

While we did not manage to cover all the issues we had raised, our key conclusions leaving the meeting were:

• We were not persuaded that the Scottish Government understood the objections to its proposals.  
• The Scottish Government remained unable to explain clearly its understanding of the legal effect of a GRC and what this was based on. Our letter stated:

We remain concerned that even at this late stage in the consultation process, the Scottish Government is still unable to state with any clarity, whether a person who acquires a Gender Recognition Certificate is afforded any new legal rights which have potential impacts on other people…..

Given this, we concluded that on the date we met, that the Scottish Government was unable to give a clear assurance that obtaining a GRC makes no difference to a person’s legal rights to access single sex provision under the Equality Act. Would you regard that as a fair statement?

• We did not feel that the Scottish Government could explain its definition of who it meant when it referred to “trans people” in an objective way that allowed the statements and claims made in its consultation paper to be clearly interpreted or tested by readers. We said in our letter:

[Scottish Government official] clarified that by “trans people” in the consultation paper the Scottish Government meant “a person whose gender doesn’t correspond to their birth sex”. When asked, he clarified that by “gender” was meant a person’s “lived identity”. We would be grateful for any further explanation you are able to provide of what the Scottish Government takes “lived identity” to mean. …. We should in any case note here that this definition appears to go much wider than the group of people entitled at present to apply for a GRC, and that the consultation paper is therefore misleading in stating without qualification that “trans people” have had the right to change their sex in law since 2004.

• The Scottish Government has never undertaken any appraisal of other options, at any stage, of alternatives to the status quo for acquiring a GRC, other than ones based on self-declaration with no medical oversight. We said in our letter:

We would suggest that a failure to explore alternative ways of reforming the GRC application process is a significant contributory factor to the divisiveness around the current debate, and the ongoing failure to secure consensus.

• The Scottish Government appeared to assume that cases of de-transition required no specific thought, due to assumptions about small numbers. We said in our letter:

It was also noted that there appeared to be very few cases of de-transitioners. We suggested that the current numbers are unreliable, that such cases are likely to increase, and that rarity is not a sufficient reason to not have a provision…

• The Scottish Government had not engaged with Dhejne et al’s (2011) Swedish cohort study findings on offending rates properly and was worryingly reliant on a misleading secondary source rather than the article itself in interpreting it. We expressed concern about this and in our letter added:

We were surprised to be asked why we thought that the study was relevant to GRA reform. In response, we stated that if the Scottish Government wishes to change the law in a way that will weaken or remove existing safeguards and the basis for services and spaces currently segregated on the basis of sex, by substantially increasing the number of people born male who have a female legal sex, then the burden of proof falls on the Government to demonstrate that is not introducing new risks in so doing…
We have been unable to find any equivalent study which shows the opposite effect to Dhejne et al’s results, nor is any such research cited in the Literature Review undertaken by the Scottish Government.

• The Scottish Government had not undertaken any specific work of its own to establish the views of existing GRC holders and applicants about the process, or how well the current process is understood by potential applicants and had relied wholly on what advocacy groups which support a self-declaration model were telling it.
• We also raised what the Scottish Government was prepared to consider as evidence. In our letter we noted our general concern about the Scottish Government’s approach to building an evidence base around its proposal:

… We also asked for clarity on whether the Scottish Government would redact and/or not publish consultation submissions that referred to cases with reported convictions, such as Karen White or Katie Dolatowski, or to campaigners such as Stonewall advisor Alex Drummond, who we were surprised was unfamiliar to both of you, as a well-known advocate of a particular school of thought about the relationship between gender identity and physical appearance.

We found the response to this question less helpful than we had hoped. For example, it was suggested that a news report in The Courier newspaper (which has reported widely on Dolatowsksi case) “might not be true”, but no suggestion was put forward as to what the Scottish Government would view as a reliable source to cite. …

In the meeting we advised the Scottish Government that we intended to write afterwards and to publish the letter, to encourage more openness in this process. We agreed to offer them the opportunity to highlight anything they did not wish to have attributed to them, and asked that they let us know in time to publish the letter before the end of the consultation.

We were subsequently advised in an email sent on 30 March 2020 that a detailed response could not be sent due to the pandemic, but that we would be contacted at a later point.

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.

Scottish Government, 30 March 2020

We received no further communication from the Scottish Government.

On 21 December 2021, 21 months after our letter had been sent, we wrote to ask if a response should still be expected. We received an email the same day, apologising for the lack of contact and offering a meeting with officials early in the New Year. This took place on 17 January. At the meeting we were advised that a response to the letter had been prepared and that officials hoped to be able to send a response to us imminently. We still hope to receive that.

However, as events now appear to be moving very quickly in Government, and the points recorded in the letter remain relevant to the Government’s state of readiness to legislate, we have taken the decision to publish the letter now, with a name redaction only. The Scottish Government has had a reasonable opportunity to highlight any difficulties it has with the content.

Meetings with Scottish Government (17 and 21 January 2022)

We met Scottish Government officials for the second time on 17 January this year. A note of the meeting is here. As we had had no involvement with officials since our last meeting, much of the discussion was spent seeking to establish what stage the Government had reached in its work. At the meeting, we were also offered the opportunity to meet with the Cabinet Secretary.

We met with the Cabinet Secretary later that week, on 21 January. Our note of that meeting is here. This was a video call, also attended by four officials and a special adviser. From the limited time we had in each meeting, we observed the following:

1. The Scottish Government is accepting no responsibility for how its proposals might impact on the operation of single sex spaces, whether in law or more indirectly, through greater reluctance to use available powers, or by eroding the social norms which discourage men generally from going into the women-only spaces, and give women the confidence to challenge their presence there.
   
2. The Minister refused to say, separately from any consideration of how the law works, what she or the Government thought in principle women were entitled to expect and not to expect in relation to single sex services and spaces: we couched questions here using real-world cases from trusted sources, concentrating on two where women had had distressing experiences on supposedly single-sex hospital wards.
   
3. The Minister deflected all questions about effects on the ground downwards to decision making by local providers and upwards to UK-level guidance on single sex spaces. She referred several times to UK-level guidance, which she clarified in a later meeting with another group (Woman’s Place UK) meant guidance due to be issued by the Equality and Human Rights Commission (EHRC), which the Government had not yet seen. Elsewhere, the Scottish Government is of course indicating it plans to ignore advice from EHRC to undertake more detailed work before proceeding with any Bill to reform the GRA.
   
4. We asked what the Scottish Government made of the judicial review decision on prisons policy last July, which had upheld as lawful policy for English and Welsh prisons which treats GRC holders more favourably for transfer into the women’s estate than non-GRC holders. This case did not appear to have been considered as relevant to their thinking.
   
5. The Government’s reliance on false declaration being criminal as the protection against abuse of the process remains weakly founded, and no further thought appears to have been given to strengthening it since we (and others) raised this over two years ago. We asked the Scottish Government whether it had discussed its proposals with professionals with direct expertise of working with sex offenders: only conversations with officials working on justice issues within Scottish Government appeared to have taken place, although the government seemed prepared to have such conversations in the light of our questioning.

Letter to the Cabinet Secretary (24 January 2021)

We wrote urgently afterwards to the Cabinet Secretary, to stress that the critical issue for us is the loss of connection between entitlement to apply for a GRC and a diagnosis of gender dysphoria, and thus any medical oversight. We noted that a diagnosis of gender dysphoria remains the criterion for accessing specialised NHS treatment, including physical treatments, and asked whether Ministers were aware that in removing the link with a diagnosis, they were opening access to a GRC to those who were by definition specifically excluded from receiving any specialist treatment, including physical treatments, on the NHS. We queried the explanation of the reason the Minister gave for removing the diagnosis, including what appeared to be a misunderstanding of the wording of the Gender Recognition Act. The full letter can be accessed here.

GRA reform and unanswered questions

The Cabinet Secretary told us the Bill was due “soon”.

We have now seen accounts of very recent meetings with the Scottish Government from other groups. Persistent themes emerge from these meetings and our own, echoing those raised in formal responses to the consultation, and directly by us with officials, two years or longer ago. For example:

The government is planning to legislate to make a change of sex in law available to a much larger group than at present, but remains adamant that this is just an administrative change. It appears unable to understand that changing the eligibility criteria changes the eligible population, in this case in a material way, which the Government itself accepts is likely to increase numbers at least ten-fold.

The Government is resting everything on an assertion, which it appears unable to argue through, that a change of sex in law could not possibly be used by anyone to successfully argue for stronger legal rights of access to single sex spaces under the Equality Act. It cannot explain why it disagrees here with the UK Government, whose prison policy which takes a contrary view was upheld in the English courts as recently as last year.

We think the process remains wide open to ill-motivated use, for identity concealment and increased leverage to gain access to women’s spaces, whatever the strict legal effect of a GRC may be. The prison system looks particularly vulnerable here. False declaration will be almost impossible to prove. We think the Scottish Government remains recklessly naïve about the risks here.

We were told that the permanency of the change was a critical safeguard against abuse of the system. Yet in other meetings, where people raised concerns about provision for de-transitioners, they were reassured that it would be straightforward for people to switch their status back.

We were told that the Government would monitor effects. We pointed out that the Scottish Government’s chief statistician has recently produced guidance recommending that public bodies cease collecting data on sex at birth as a matter of routine, making tracking the effects of policy change here impossible. This point did not appear to have been considered.

Other topics that we and others have raised where Government thinking does not seem to have developed over the past two years include the evidence base for change and cross-border effects within the UK. We have been advised that in one meeting the defensive line offered about one particular cross-UK effect was based on a factual misunderstanding about the operation of the GRA at present.

Contradictions and confusion: sex and the census

Further evidence of Governmental confusion comes from a judicial review of plans for the Scottish census, held on Wednesday 2 February.

Speaking on behalf of the Scottish Government, Douglas Ross QC noted that Ministers “offer no view” on whether a non-GRC holder is or is not their original sex for the purpose of sex discrimination under the Equality Act 2010. The Government now needs to explain its confidence that a GRC can have no effect under other parts of the same Act.

In the same case, Mr Ross argued for the Scottish Government that collecting data on a person’s sex as recorded at birth would mean collecting  “out of date and historical” information. The Government has therefore tried to reassure women in one context that it accepts single sex spaces matter, and that there are times when sex as an unchangeable biological category may be used to determine who does a particular job at a particular time, or can be in a particular space; but in another context is arguing that this aspect of a person loses all relevance once they identify differently.

From its defence at this week’s judicial review, set against its lines on GRA reform and on single sex spaces, the Scottish Government appears confused as to whether sex at birth retains any relevance if someone changes how they identify, and if so when, and even whether it might be possible (from statements made in the census case) to be both sexes at the same time. Before it reforms the law here, the Government needs to be clearer about what it thinks sex is and when it matters.

Consultation and the duty to “conscientiously take into account”

GRA reform is not a process still in its early stages. The Scottish Government has had two years (rather more in some cases) to consider the above issues, and is planning to bring forward legislation soon.

In a recent legal case, the judge had cause to quote the ‘Gunning principles‘ which a consultation should follow to meet a public authority’s legal duty to ensure any consultation is fair, which are established in case law. These are:

1. Consultation must be at a time when proposals are still at a formative stage;
2. The proposer must give sufficient reasons for any proposal to permit intelligent consideration and response;
3. Adequate time must be given for consideration and response; and
4. The product of consultation must be conscientiously taken into account in finalising any statutory proposals.

A Scottish Government good practice guide on how the principles should be applied when consulting on policy is available here. What counts as adequate consultation is not simply a matter of political or official choice was reinforced in a further case this week, where the Scottish Government’s conduct of a different consultation was deemed unlawful.

How far either consultation on GRA reform provided clear enough information for respondents to comment is open to dispute. On the principle of ‘conscientious consideration’, the position is clearer. In neither case was a report produced which not only summarised the responses, but also explained what the Government made of the concerns raised. Since the second consultation closed, the Scottish Government has taken no initiative to contact any of those raising concerns for any further discussion. Our own recent meetings only happened after we chased up the 21 month delay in answering our letter. All others in the past few weeks only occurred because organisations contacted the Scottish Government in response to an invitation to do so that was issued via the press. These groups are run almost entirely by volunteers, with no offices, no staff and no budget: in several cases, their contact details were however available from their consultation responses. It would have been  unreasonable to expect them to take the initiative to contact Government in any circumstances, even more so when the Government had been elected on a promise to speak to different interest groups about this issue.

All of these meetings have been short. The Scottish Government’s understanding of the various criticisms of its proposals appears no more advanced than it was two years ago, and it cannot respond to them more substantially or coherently than it could then.

We therefore believe the responses given at the most recent meetings are evidence that those consultation responses raising concerns, questions or criticisms had still not yet been conscientiously considered at the point these meetings took place.

With legislation expected “soon”, as we were told, the Scottish Government finds itself in a difficult place. The EHRC’s letter setting out its view that the Scottish Government still needs to do more work here was itself written after the Commission had met the Cabinet Secretary and had had the opportunity to observe the Scottish Government’s state of readiness.

As the Gunning principles make clear, setting up an email address, commissioning contractors to summarise what is sent to it and letting time pass do not together substitute for the Government doing the work of engaging with any critical content consultees send in.

The frustration of those organisations which would like the process to move into the Parliament now is understandable. They should ask however why so little work was undertaken that could be used to demonstrate that the Government had conscientiously considered concerns raised, as the Bill timetable moved forward. The Parliament does not exist to do preparatory work on legislation and is not resourced to do so. That work should be done by Government. Parliamentary processes are not designed to compensate for Government choosing not to engage directly with those who do not agree with it, or only to do so briefly and too late.

Conclusion

A Bill to reform the GRA is apparently imminent. Yet the Scottish Government still cannot answer basic questions. It hangs on to the line that taking an existing legal instrument and opening eligibility to it to a much larger and more diverse group is simply updating an administrative process. It cannot clearly explain what this instrument may or may not entitle people to in ways which might affect other people, and why its view on that is different from the UK Government’s. It seems unable to contemplate that there might be unintended consequences. Its response to questions about points of detail and its evidence base are thin. Where we go next rests in the hands of Ministers.