The room where it happens

11th February 2022 • Gender recognition

Drawing on a recent Freedom of Information (FOI) response, this blog looks at the pattern and substance of Scottish Government meetings on gender recognition reform between May and December 2021. We describe what meetings took place, at whose initiative, what was discussed and what these records tell us about the Scottish Government’s relationship with external bodies, and its understanding of reform.

The analysis highlights a marked bias in engagement towards those who agree with the Government position. Despite a manifesto commitment to a consultative approach, the Scottish Government did not set up any meetings with groups that submitted critical comments to its last consultation.

The account adds further weight to our previous analysis, which considered whether the Scottish Government had ‘conscientiously taken into account’ submissions to its last consultation, as required under the Gunning principles. The record of engagement discussed herein provides further evidence that the Scottish Government has not done so. It also provides further evidence that the Scottish Government simply does not recognise that the proposal to remove the need for a medical diagnosis will make a change of sex in law available to a much larger and different population than at present.

We conclude that if legislation is introduced soon, the parliament will be faced with compensating for an unfair and unreasonable process that is demonstrably biased, in which the government has insulated itself from having to engage with critics or the substance of their concerns. It will be asked to do so in the crucible of a highly charged atmosphere, where government and its allies have sat in private earnestly discussing the need for respectful debate while agreeing that all disagreement with them is “misinformation”.

Background: 2021 SNP manifesto

1st Freedom of Information request
On 30 November 2021 we asked the Scottish Government for information about its 2021 manifesto commitment to work with a range of stakeholders to reform the Gender Recognition Act 2004.

Please provide any information held by the Scottish Government on what work it has done “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” since May 2021.
MBM FOI request, 30 November 2021

The answer (here) which came back on 31 December (the date shown on the Scottish Government website is wrong) referred to the two pre-election consultations and the report commissioned to summarise the responses. The response added:

The Scottish Government is taking account of consultation responses and other evidence ahead of introducing the Bill.

Since May 2021, the Cabinet Secretary has also met with organisations that requested a meeting including:
– Equality Network
– Scottish Trans
– Stonewall Scotland
– LGBT Youth Scotland
– LGBT Health and Wellbeing
In addition, Scottish Government Officials have also met with:
– Equality and Human Rights Commission
– National Records of Scotland
There have been no further requests for meetings from other organisations since May 2021.
Scottish Government, 31 December 2021

2nd Freedom of Information request
As this was low on detail, we then asked:

Further to the information provided in FOI response reference 202100258782 dated 16 December (sent 31 December), for the organisations named in that response, and for any others not included in the list with which relevant meetings have been held, please provide:
– the dates of the meetings held,
– any notes or other records of what was discussed at each meeting, and
– any information held relating to setting up the meetings.
MBM FOI request, 3 January 2022

On 2 February 2022 the Scottish Government replied. The full response is here.

Below we describe what meetings took place (Ministerial and officials), at whose initiative, the relationship between the government and groups advocating for self-declaration, and what was discussed. We also supplement the information provided in the FOI response with information from the Lobbying Register, which we checked for any Ministerial meeting which listed GRA reform as a topic, and more generally, for meetings with the main groups advocating for the approach to reform adopted by the government.

Ministerial meetings

The Lobbying Register shows that the Equality Network met Christina McKelvie MSP, Minister for Equalities and Older People, in June 2021, at their request; however no discussion of GRA reform is recorded.

The first relevant ministerial meeting after the election appears to have been with Ms McKelvie on 5 August 2021. The meeting was not listed as a relevant event in the response to our FOI. Both Stonewall and LGBT Youth Scotland recorded in the Lobbying Register that GRA reform was among the issues discussed. Stonewall also describes the Equality Network, Scottish Trans Alliance (STA) and LGBT Health and Wellbeing being present at this meeting. The Equality Network (which for this purpose includes the STA) and LGBT Health and Wellbeing have not included this meeting in submissions to the register; however, where the government initiates a meeting, it is optional to report it.

The FOI response then records that the relevant Cabinet Secretary, Shona Robison MSP, had three meetings relating to GRA reform:

18 November 2021: ‘LGBTI Equality Groups’ (Stonewall Scotland, the Equality Network including Scottish Trans Alliance, LGBT Youth Scotland, LGBT Health and Wellbeing)
1 December 2021: Scottish Trans Alliance only
13 December 2021: LGBT Youth Scotland

Meetings with civil servants

Between August and December 2021 Scottish Government officials met the following groups to discuss GRA reform:

27 August 2021: The Equality Network (including STA) and Stonewall
11 November 2021: ‘LGBT Stakeholders’ (the same organisations as on 27 August)
7 December 2021: ‘LGBT Stakeholders’ (the same organisations as on 11 November plus LGBT Youth Scotland)

Officials also met three bodies with public functions: the Equality and Human Rights Commission (EHRC); the Children and Young People’s Commissioner (not listed in the original FOI response); the Scottish Civil Justice Council (also not listed in the original FOI response); and the National Records of Scotland (on three occasions, although note that the NRS works direct to Scottish Ministers, so these meetings were not external engagement in the same way as others).

The FOI response states that some meetings are excluded as ‘outside scope’ (we are asking for this to be reviewed). This may for example, include meetings of the Scottish Government’s Non-binary Working Group and its sub-groups, on which Stonewall Scotland, the Equality Network including Scottish Trans Alliance (STA), LGBT Youth Scotland, LGBT Health and Wellbeing (the same groups as met the Cabinet Secretary on 18 November) are represented, attending alongside civil servants. Several meetings under this banner took place between May and December. On 16 September, the minutes record that the group was told ‘The Bill will be introduced in February 2022 and it is unlikely that there will be big changes to the Bill.’

Who arranged the meetings

In January 2022, in responding to critical media coverage about the narrow scope of its engagement to date, the Scottish Government indicated that it had met with everyone who requested a meeting. However, this left unclear whether meetings had happened only with those who had requested one. The second FoI response makes it clear this was not the case and that the Scottish Government was active in seeking engagement with the various organisations it met, particularly at an official level.

The FoI response includes an email showing that on 6 July 2021, shortly after the June meeting with the Equality Network noted above, Ministers issued an invitation to an introductory roundtable with LGBT groups. Although further details of this are not included in the FOI response, this looks likely to be the 5 August meeting recorded in the lobbying register, at which GRA reform was discussed.

The Cabinet Secretary’s meetings can be traced more clearly to approaches from the Equality Network and the STA. However the meeting on 13 December 2021 with LGBT Youth Scotland was proposed by LGBTYS during the discussion on 18 November. Being in the room provided more chances to be in the room again.

The official-level meeting on 11 November 2021 with LGBTI stakeholders on GRA reform was initiated by civil servants. The day before the Equality Network suggested adding ‘arranging regular meetings’ to the Agenda. The 7 December meeting with several groups appears to have followed on from this. Again, being in the room opened the door to further meetings. The 17 November meeting with LGBT Youth Scotland came out of an invitation offered by civil servants of ‘a follow up chat if anyone was interested’ at a separate meeting (of the National Gender Identity Clinical Network for Scotland) attended by the various groups. The 27 August meeting with the STA appears to be the only meeting with officials that took place purely due to an approach from cold by an external body.

Based on the information provided, the official-level meetings with the EHRC, NRS, CYPCS and the Scottish Civil Justice Council were all initiated by civil servants.

A close working relationship

The exchanges show a well-developed working relationship between government and groups advocating for self-declaration, strengthened by the same people meeting in other contexts as well.

Emails go backwards and forwards quickly. More than one meeting is hosted online by one of the external groups.

Approaching the Minister for a meeting the day after the launch of the Programme for Government, the STA offers ‘to answer any questions you may have about the proposed changes’. Ministerial meetings with external bodies are usually expected to work the other way round.

It should be emphasised that the pro self-declaration advocacy groups did nothing unusual in approaching government and taking all chances they could to put their case. The STA email indeed acknowledges that other views exist, saying they ‘hope that we can help [reduced polarisation in the debate] by being part of a constructive and respectful conversation about the range of views on these issues’.

What is more exceptional is where the Cabinet Secretary and the STA (which as part of the Equality Network derives its income from the Scottish Government) discuss how the STA will ‘help raise the understanding’ of MSPs and by implication encourage their support of government proposals. Concerns about undeclared co-ordination between government and external bodies during the legislative process has come up before (for example in relation to the legislation on named persons).

The question here is not, as it has sometimes been in other contexts, whether the STA has been pressured into its position. Clearly it has not. The issue is how far its apparent separate status and the resources attached to that are used to amplify the government’s voice and influence in the parliamentary process, to help delegitimise those critical of government proposals and so make it harder for those criticisms to be properly heard in the parliamentary process.

Parliamentary planning aside, the problem here is not the government talking to these organisations; but that it has not talked to anyone else. Critics, even those (ForWomenScotland, ourselves) who had met ministers or officials in the previous parliament, were ignored. As recorded in our previous blog, while all these discussions were going on, even just a letter we had sent in March 2020 was too much to answer. Although the offer of a meeting came on the same day as we finally chased a response, 21 months on, that should be set against having had no acknowledgment of a paper we submitted to the government earlier in the month. It should not take acute embarrassment to get a government to engage directly with more critical responses to a consultation. Similarly, the government only issued a wider ‘invitation’ to meet a wider range of stakeholders after critical press coverage. Even then, this offer was only made through the media. Our letter remains unanswered.

Notes of the meetings

We previously argued that there is no evidence to indicate that the Scottish Government has engaged properly with the substance of criticisms. This is further supported by the various meeting notes.

The 18 November ministerial meeting discussed GRA reform and conversion therapy. Much of the discussion of GRA reform was about the tone of the debate. An unidentified person, who may be an official or an external attendee, noted:

it was important to highlight that the Bill allowed people to access rights they already had.
Cabinet Secretary and LGBTI stakeholders meeting, 18 November 2021: para. 2

This statement was not questioned or challenged, but supported by Ms Robison:

Ms Robison said the purpose of the reform was about a making existing processes easier and fairer for a small number of people for whom the current process was difficult and unfair.
Cabinet Secretary and LGBTI stakeholders meeting, 18 November 2021: para. 3

LGBT Youth Scotland argued that lowering the age was important as:

Trans young people struggled to access services as they were not able to apply for a Gender Recognition Certificate.
Cabinet Secretary and LGBTI stakeholders meeting, 18 November 2021: para. 6

This statement does not appear to have been explored further. Instead, a separate meeting with LGBT Youth Scotland was agreed (see below). The only other follow up action on GRA reform agreed was that:

Ms Robison agreed to reflect on how to challenge misinformation surrounding the Gender Recognition Reform (Scotland) Bill.
Cabinet Secretary and LGBTI stakeholders meeting, 18 November 2021: Follow Up Actions 1

On 1 December the STA set out its view that the process was ‘complicated and pedantic’. They stressed:

the requirement for medical evidence can feel disconnected, stigmatising and retraumatising.
Cabinet Secretary and STA meeting, 1 December 2021: Discussion

The STA welcomed the Bill but, in contrast to its earlier commitment to be part of a process recognising different views existed, said:

There are some aspects that are not ideal and seem like they are already concessions to critics of reform, for example the two 3-month periods.
Cabinet Secretary and STA meeting, 1 December 2021: Discussion

The discussion as recorded shows no sign of the Scottish Government recognising the distinction between evidence requirements and the principle of a diagnostic criterion, despite having had this point put to it repeatedly. As we have argued since 2019, concerns about the administrative burden can be addressed by changing what evidence is required, whilst retaining the requirement of a diagnosis.

On 13 December members of the LGBT Youth Scotland Youth Commission ‘discussed their difficult experiences’ related to the current lower age limit for a GRC being set at 18, rather than 16. They argued:

reducing this age limit would send a message to society that trans people understood their identity and could make this decision.
Cabinet Secretary and LGBT Youth Scotland meeting, 13 December 2021: para. 2

They were concerned that people deterred by the “unnecessarily bureaucratic and intimidating” GRC process would have their deaths recorded with the wrong details. They asserted that

Trans young people faced particularly high rates of homelessness and mismatched documents made them more vulnerable.
Cabinet Secretary and LGBT Youth Scotland meeting, 13 December 2021: para. 2

There is no suggestion in that record that any of these statements being explored or questioned further. Ms Robison responded that she:

understood the difficulties trans people faced when accessing gender services and that the process medicalised trans people.
Cabinet Secretary and LGBT Youth Scotland meeting, 13 December 2021: para. 3

The minutes show no sign of meetings being used to explore the content of criticism, or to test the arguments of pro self-declaration groups. Instead, the meeting notes reinforce how far the Scottish Government has accepted all points put to it in favour of self-declaration at face value and show Ministers starting from the position that any objections to self-declaration are based on ‘misinformation’.

No records have been provided of the official meetings; we have asked if any exist.

The only indication of what issues were discussed are in the emails setting up arrangements. For the 27 August meeting, the STA asked to discuss ‘GRA reform and rUK issues’, which the STA described on 6 August as:

something we’ve been discussing a little in sector policy meetings in recent weeks!
Scottish Trans Alliance, email correspondence 6 August 2021 (FOI page 14)

Officials also suggested ‘cross-border issues’ as a topic for the 11 November meeting (FOI page 3).

Yet more recent meetings between the Minister and those critical of self-declaration have shown the government to be no clearer on cross-border effects than it was at the time of the last consultation. In one case, the government’s defensive line against a critical point rested on a misunderstanding of the current law. Discussing cross-border issues only with those with whom it agrees may have introduced new misunderstandings, rather than resolved issues.

The other issues on the agenda for 11 November included ‘Bill policy (including minimum age, statutory declarations and associated offence, fees)’, timelines, and the meetings arranged with the Minister.

Again, recent meetings have provided no reassurance that the government can defend its reliance on statutory declaration as a safeguard, or the interaction of this with detransition, any better than it could two years ago. The account of a meeting with a support group for parents of children who identify as trans suggests that whatever discussion there has been with groups arguing to lower the age for a GRC, it has left fundamental questions unconsidered.

Reforming an imaginary law

At the root of the disagreement over GRA reform is the proposal to decouple the entitlement to obtain a change of sex in law with the basis on which specialist treatment is made available on the NHS, which is a diagnostic test.

These new meeting accounts are further evidence that the Scottish Government really does not recognise that the proposal to remove the need for a medical diagnosis will make a change of sex in law available to a much larger and different population than at present.

This is a point that has been made to government repeatedly. It was a key issue we raised in our discussion with officials in March 2020 and which we pressed further in our (long-time unanswered) letter to them afterwards.

The EHRC appears to have a similar concern, having emphasised to the Scottish Government that:

These concerns centre on the potential consequences for individuals and society of extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point.

It becomes clear, in fact, that one reason why the Scottish Government has been unable to “conscientiously take into account” any criticism of its proposals is that it fundamentally misunderstands the law it is proposing to reform.

The Scottish Government has reimagined the existing legislation as something it is not, either on its face or in its original conception. It has been persuaded that the GRA 2004 is already a piece of law which is mainly about providing access to a new birth certificates for anyone who feels a mismatch between their inner sense of self and their sex, as matter of record at birth, and just does not do this well enough.

But the Act was designed to be, and is written and functions as, something very different: a piece of law enabling a change of sex for multiple (but not quite all) legal purposes, for those who have made specific, major practical changes to how they live, and can show they have done that, in response to an objectively assessed need. In a judgement last year from the High Court of Northern Ireland, a GRC was described as:

a major change in the status of the individual in the eyes of the law …
I accept the respondent’s (the UK government’s) submission that the legal change in a person’s gender is a significant and formal change in their status with potentially far-reaching consequences for them and for others, including the State.
High Court of Northern Ireland Judicial Review [2021] NIQB 48 (paras. 31 and 135)

The inclusion of some medical gate-keeping for a GRC process at present is a feature, not a bug. As the 2021 judgement also said:

I cannot accept the applicant’s submission that the 2004 Act was specifically designed to fracture any such link [between legal recognition and entitlement to medical treatment]. Although it was designed to facilitate gender recognition without an applicant having had to undergo any gender reassignment surgery or treatment, the requirement for a diagnosis and more especially the requirement that a medical member form part of the GRP demonstrates that Parliament considered it proper to have some read-across between the two processes by way of professional clinical involvement in each.
High Court of Northern Ireland Judicial Review [2021] NIQB 48 (para. 139)

It might well be possible to streamline the evidence requirements (and the 2021 judgment also suggests amendment to the detailed definition of the diagnosis). But the brief comments from the Minister in these notes confirm what was also apparent from the most recent meetings. The Scottish Government does not understand that moving GRCs from something linked to a diagnostic test to validation of self-perception changes why the law exists and who it is for, and how easily it might be misused. From that change flows all the criticism and concern. But no one in government can hear it.

Not understanding the law they are proposing to reform has caused the Scottish Government to minimise to themselves the effect of the change proposed, making it easier to dismiss even the possibility of unintended consequences. Maintaining this mindset has been aided by officials and Ministers avoiding engagement with those who disagree with them. They have instead kept their detailed engagement to people who share, indeed who presumably supported in the first place, their (mis)perception of the law as it stands.

None of this prevents anyone from arguing that the GRA should no longer include a diagnostic test. It does mean however that in proposing to remove this, the government has been unable so far to engage in a conscientious way with the consequences of doing so.

A law unto itself?

Administrative practice in government is not a free for all, but subject to basic principles set in law, whether case law for the basics of administrative process, concepts such as maladministration, concerned with matters including bias and delays, or the Equality Act, which sets rules about the treatment of groups with different protected characteristics. Advice from the Solicitor to the Scottish Government to civil servants on how to stay within the law while doing their job notes that in administrative law the test of “reasonableness” includes:

seeing whether [public bodies] have taken into account matters which they ought not to take into account, or conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.
Right First Time: a practical guide for public authorities to decision-making and the law. 2nd edition

Under the Equality Act public bodies must act and make decisions in a way that avoids discrimination, harassment and victimisation. Under the Public Sector Equality Duty they must:

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

It is hard to see how the process described above, taken with the evidence here meets those tests.

Conclusion: fair or reasonable?

The Scottish Government appears to be planning to introduce a Bill in a context where:

there is strong case to argue that the Gunning principles governing lawful consultation, especially the duty to “conscientiously take into account”, have not been met
Gunning aside, it has systematically pursued a partial approach to engagement, in which any critical voices have been ignored.
there is clear evidence that it does not understand how its proposals will change the current position in law.
the EHRC has asked it to consider matters further before introducing a bill.

Discussing ‘failures of consultation (and indeed other lapses in due process)’ the Solicitor to the Scottish Government has said:

the decision-maker may be tempted to say “but it was an open and shut case. Consultation would have made no difference. The decision would inevitably have been the same”. That may well be true, but the courts are unlikely to be sympathetic to such a response. And for good reason: the principle is that only a fair procedure will enable the merits to be determined with confidence, and must therefore come first.
Right First Time: a practical guide for public authorities to decision-making and the law. 2nd edition

We think the Scottish Government would have a difficult time defending its processes here in court. However, as explained in the UK Government’s guide to lawful decision-making, the courts cannot be asked to rule on whether ‘decisions by ministers as to what to propose to Parliament by way of legislation’ are lawful under the general principles of administrative law. On this, the courts defer to the judgement of our elected representatives.

This means that if legislation is introduced soon, the parliament will be faced with compensating for an unfair and unreasonable process, demonstrably biased, in which the government has insulated itself from having to engage with critics or the substance of their concerns. It will be asked to do so in the crucible of a highly charged atmosphere, where government and its allies have sat in private earnestly discussing the need for respectful debate while agreeing that all disagreement with them is misinformation.

Good law is not made this way.