MBM submission on Gender Recognition Reform (Scotland) Bill

Our written evidence to the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee can be found here. Our submission highlights that:

  • The equality impact assessment (EqIA) of the draft legislation has barely changed since the EqIA undertaken for the Scottish Government’s 2019 consultation, suggesting that it has not undertaken any further substantive analysis since then.
  • The Scottish Government maintains that its reforms will not impact on the provisions in the Equality Act 2010 (EA) which permit the lawful provision of single sex spaces, services and protections for women. However, it has failed to explain its position on the interaction between the GRA and the Equality Act, which is not settled law. Indeed, the Scottish Government holds contradictory positions on this interaction.
  • The potential cross border effects of the legislation are wholly unclear and remain unaddressed by the Scottish Government.
  • The bill contains no provision for individuals who have changed their sex in law but later ‘detransition’. Nor does it appear that the Scottish Government has undertaken research to ensure safeguards are in place before reducing the age at which a person can obtain a Gender Recognition Certificate (GRC) from 18 to 16 years old, as recommended by the Children’s Commissioner.
  • The Scottish Government asserts that attaching a criminal penalty to anyone who makes a ‘false declaration’ is a safeguard against bad-faith actors abusing the system. However, it has failed to set out how a false declaration would be proven.
  • Section 22 of the GRA prohibits and criminalises the disclosure of an individual’s GRC status, apart from in exceptional circumstances. In practice, this means, for example, that healthcare providers cannot guarantee access to a female member of staff, due to the risk of disclosure. In 2019 the Scottish Government stated that it was considering limiting this provision and providing guidance for its use. Instead, it is extending the provision to cover all gender recognition.
  • There are no plans in place to monitor the effects of the legislation. In September 2021, the Scottish Government advised all Scottish public bodies that they need no longer collect data on sex at birth as a matter of routine, making it impossible for them to demonstrate any harms experienced by women as a result of the reforms.
  • The data which the Scottish Government intends to publish on GRC applications falls short of the data currently published by the UK Government as part of the Tribunal Statistics Quarterly series.
  • The Scottish Government’s development of these proposals has shown a marked bias in engagement with groups sympathetic to a self-declaration model of legal sex change, despite a manifesto commitment to a consultative approach.