The note below was sent yesterday to all MSPs on behalf of a number of women’s groups, following the first public session of Stage 1 of the Gender Recognition Reform (Scotland) Bill on Tuesday 17 May. It sets out why it is important that Stage 1 of the Bill process is used to look properly at the potential impact of the Bill on single sex services.
Witnesses on Tuesday were asked about the potential impact on single sex services of the Scottish Government’s plan to make Gender Recognition Certificates much more widely and easily available. The legal framework for single sex services is contained in the Equality Act 2010.
Melanie Field, Chief Strategy and Policy Officer for the Equality and Human Rights Commission (EHRC), described the relationship between GRCs and the Equality Act as “very complex”, adding “A trans woman with a gender recognition certificate would be a woman and would be able to access a women-only service. A trans woman without a gender recognition certificate would be legally male, so they would have no automatic right of entry to a women-only service”. She restated the EHRC’s view that “more detailed consideration is needed before legislative change is made” due to “the continued lack of certainty about the practical consequences”.
Organisations supporting the government’s proposals instead talked about “misinformation, some of it deliberate, around what the provisions of this bill will mean for the impact of women and girls” (Colin MacFarlane, Stonewall). Mhairi Crawford (LGBT Youth Scotland) stated “the bill is about gender, a piece of paper. It’s about the birth certificate. It is not about the Equality Act.”
As groups who have met the Scottish Government and raised the implications for women and girls of policies and law based on the self-declaration of sex, we highlighted to MSPs that we object to how our concerns are being characterised to the Scottish Parliament and that we are worried that the full effect of a GRC is at risk of being misunderstood. We noted that at no point in the past five years has the Scottish Government addressed the content of these arguments in detail, despite having many opportunities to do so: we are looking to the Scottish Parliament to put this right.
The note was sent on behalf of:
Fair Play For Women
For Women Scotland
Woman’s Place UK
Women and Girls Scotland
Women Speak Scotland
This note sets out how reforming the Gender Recognition Act 2004 (GRA) to enable individuals to change their sex in law based on a statutory declaration model puts at risk women’s ability to set boundaries based on sex for reasons of privacy, dignity and safety, in contexts where the law allows separate arrangements for women and men.
The UK-wide Equality and Human Rights Commission (EHRC) recently confirmed that women’s need for privacy, dignity and safety can justify providing a single sex service, excluding anyone male, however they identify, as a proportionate means to achieve a legitimate aim.
- The relationship between the Gender Recognition Act 2004 and the Equality Act (EA) 2010 is not settled law.
- It is therefore misleading to claim that there is a clear separation between them.
- MSPs should not legislate on the assumption that such a clear separation exists.
- The impact of opening up Gender Recognition Certificate (GRC) to a much larger, more diverse group would be enough to affect how access to single sex services and roles is managed, without any change to the face of the EA 2010.
- Change to the EA to make GRCs more powerful as a way of accessing single sex spaces has been promoted at Westminster in the recent past and remains possible again in future.
1. Who thinks GRCs may matter under the EA 2010?
All the organisations below are on record as holding the view that a GRC can affect how a person is defined in law and is therefore entitled to be treated under the EA 2010 (emphasis added to some quotes). The briefing note provided by SPICe (p.32) reiterates this position, stating ‘Individuals are treated under the sex discrimination provisions of the Equality Act 2010 in line with their legal sex.’
a) The Scottish Government and the Equality Network
The Inner House of the Court of Session recently ruled that the Scottish Government was strictly limited under the Scotland Act 1998 to using “sex” as defined in the Equality Act 2010 as the basis for measures in the Gender Representation on Public Boards (Scotland) Act 2018.
Given the terms of the judgment, the Scottish Government can only believe its revised guidance below is lawful, if it believes a GRC confers a change of sex under the Equality Act.
‘The meaning of “woman” for the purposes of the Act
2.12 There is no definition of “woman” set out in the Act with effect from 19 April 2022 following decisions of the Court of 18 February and 22 March 2022. Therefore “woman” in the Act has the meaning under section 113 and section 212(1)4 of the Equality Act 2010. In addition, in terms of section 9(1)5 of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.’Gender Representation on Public Boards Act (Scotland) 2018 Statutory Guidance Paragraph 2.12
Internal Government notes show the Equality Network arguing in 2017 that the GRA was deliberately worded to help secure GRC holders’ access to single sex services and the Scottish Government appearing to accept this:
‘At Monday’s meeting, EN/STA set out why they are content with the terms sex and gender being used interchangeably [in Section 9 of the GRA]. When the GRA 2004 was being developed, Press for Change suggested the wording used in section 9 where sex and gender are used interchangeably. [redacted] advised that this was intentional in order to prevent trans people from being discriminated against in terms of their sex. Their view was that there was a risk that service providers, etc. would say something along the lines of “the act means we recognise your acquired gender identity, however, your sex hasn’t changed” and trans people would still be denied services.’Internal Scottish Government email 1 September 2017 10:39. SG FoI release p.49
‘Legislation might conflate sex and gender – as we discussed at the meeting with the EN/STA, the GRA does exactly that but it does it for policy reasons.’Internal Scottish Government email 1 September 2017 18:09 SG FoI release p.48
b) The UK Government
In England, Ministry of Justice transgender prisoner policy treats a GRC as conferring a default right to be placed a prison reflecting the ‘gender’ marker on the GRC (unlike other prisoners seeking to be housed according to how they identify, who are assessed differently). The policy was upheld at judicial review in July 2021.
‘4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate/AP unless there are exceptional circumstances, as would be the case for biological women.’The Care and Management of Individuals who are Transgender UK Ministry of Justice/Prison and Probation Service 2019 (emphasis added)
GRCs are regarded as making a sufficient difference to have required reconfiguration of the prison estate. E-Wing at a women’s prison, Downview, has been created specifically for “high risk GRC holders”. Without a GRC, a transgender prisoner assessed as high risk would be retained in the male estate.
‘E Wing has been developed in response to an operational need to find a long term solution for the management of a specific cohort of high transgender women with GRCs which appropriately balances the rights of these individuals and the rights and safety of the other female prisoners (both trans and non-trans) in the women’s estate… It became apparent that there was a small cohort of transgender women with GRCs who did not satisfy the “exceptional circumstances” requirement, segregation was not appropriate for long term management and risk assessments provided that these individuals were unsafe to be placed on normal location in the women’s estate.’HMP Downview E Wing Equality Analysis version 16.0 for publication National Offender Management Service (March 2019)
c) The Equality and Human Rights Commission
The EHRC also believes that case law means a GRC changes a person’s sex under the EA 2010 for the purposes of discrimination, a position it confirmed in evidence to the Equalities, Human Rights and Civil Justice Committee in oral evidence on 17 May 2022.
‘Under the Equality Act people are protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a Gender Recognition Certificate is legally male and is treated as a man for the purposes of the sex discrimination provisions, and a trans woman with a Gender Recognition Certificate is treated as a woman. The sex discrimination exceptions in the Equality Act therefore apply differently to trans people with and without Gender Recognition Certificates.’EHRC Protecting people from sex and gender reassignment discrimination April 2022
‘…we think that it is unlikely that a trans person without a GRC can claim direct discrimination on the grounds of gender reassignment if they are denied access to a single or separate sex service that corresponds with their lived gender…
Green [the case used in UK prison policy] is a post GRA decision which sets a precedent and is of general applicability to the question of who the correct comparator is in a direct discrimination case, rather than one which is likely to be confined to its facts.’EHRC Letter to Translegal, July 2021 (emphasis added)
The Head of Legal at EHRC Scotland further stated at an event on 6 November 2020 that having the characteristic of gender reassignment under the EA 2010 does not of itself change a person’s sex under that Act.
Question to panel: “Does being covered by gender reassignment change a person’s sex for the purposes of the Equality Act 2010?”
Head of Legal, EHRC Scotland: “No. Is the short answer. You would have other characteristics, gender reassignment would be a characteristic that you held along with sex, and disability, or religion or age, so no.”Engender ‘Lunchtime webinar: Understanding the Equality Act’, 6 November 2020 (notes taken of Q&A)
d) HM Courts and Tribunals Service
Guidance to applicants, suggests that a GRC will change their status for the purpose of discrimination claims under the Equality Act. Its guidance on discrimination states:
‘Once a person has been granted a full GRC they have the same rights and responsibilities as their legally acquired gender. So for instance, an employer must treat a transsexual woman with a GRC in the same way as other female employees when it comes to pay. As the same Act prohibits discrimination because of sex, the employer must also treat that person, as a woman, and in a way which is no less favourably than a man.’HM Courts and Tribunals Service The General Guide for all Users Gender Recognition Act 2004 para 3.8 (T455) (2021 edition) (emphasis added)
2. Who is right?
These perspectives above will be contested by some witnesses to the Parliament. They will argue that a GRC is irrelevant to a person’s legal right to gain access to single sex spaces, as long as they have the characteristic of gender reassignment. That view is also contested and is not settled law.
We are not offering a view of our own. Neither we, the Scottish Government, MSPs, nor anyone else, will be able to give a reliable, definitive view on the relationship between these two Acts as currently drafted during the passage of the Bill. That can only be done through clarification in statute, with Supreme Court case law next best.
Without that, cases taken to the courts to decide in future could always go either way. The Scottish Government contributes to the funding of a legal advice centre which is working in partnership with the Scottish Trans Alliance with the aim of bringing test cases relating to trans rights.
MSPs should assume that the precise impact of a GRC on legal rights under the Equality Act is unclear and likely to be tested in future, here or elsewhere in the UK.
MSPs are therefore being asked to extend, to an unknowable extent, the number and range of people who can obtain GRC without knowing its exact legal effect under the Equality Act 2010, however much they are assured otherwise.
3. Why does this matter for the operation single sex services?
Providers will react differently to the risk of claims based on direct and indirect discrimination. They will be more concerned about the risk of the first. The end note discusses this more.
Although GRC holders already exist, they do so in very small numbers. If GRA reform proceeds as planned, providers will need to consider the risk of direct discrimination claims being brought by members of a much larger and more diverse group, if they use the powers they have to exclude all people (born) male from a women’s service.
Further, where the Act allows the exclusion of people with the character of gender reassignment when it is ‘legitimate and proportionate’, it is unclear whether a court might decide that having a GRC shifts the balance in favour of a person with that characteristic, when it comes to assessing proportionality.
Many new GRC holders will have been encouraged by advocacy groups to see access to women’s spaces as a right for them that should rarely or never be restricted by sex.
Confusion about the law, GRC-related privacy rights, and the message sent by legislators to wider society about how a woman is defined will also have an effect. GRA reform as currently planned will undermine further the confidence of front-line staff in excluding any clearly male people asserting a right of access to women’s spaces.
4. The larger context: ending the ability to have fully single sex spaces and roles
Advocates of self-declaration for a GRC have argued in the recent past against providers ever being able to exclude all people of the opposite sex from any space, service or role.
In written evidence to the Women and Equalities Select Committee in 2015, the Equality Network/Scottish Trans Alliance argued:
“The Equality Act 2010 should be amended to:
– Include gender identity as a protected characteristic
– Remove the exception that allows single sex services to discriminate against trans people
– Remove the genuine occupational requirement (GOR) allowing some jobs to require applicants must be cisgender and replace it with a GOR allowing posts delivering trans-specific services to require applicants must be transgender.”
Stonewall’s written submission to the same inquiry stated that:
‘A review of the Equality Act 2010 to include ‘gender identity’ rather than ‘gender reassignment’ as a protected characteristic and to remove exemptions, such as access to single-sex spaces.’
In 2017, it repeated this position in ‘A Vision for Change: Acceptance without exception for trans people, 2017-2022’:
‘In addition, Stonewall will advocate for the removal of all instances of permitted discrimination of trans people from the Act, as well as for updates to the explanatory notes and statutory codes of practice accordingly. Stonewall will lobby political parties in England, Scotland and Wales to include full equality for trans people, and the reform of the Equality Act, as part of their political commitments.’
The Women and Equalities Select Committee’s 2016 Report recommended that the Equality Act should be amended so that GRC holders could never be excluded from any single sex service or role, making it impossible in law for a woman ever to have access to a space where no males are permitted or have a task performed for her only by someone of the same sex. The UK Government originally accepted this recommendation, although later changed its mind. For details on the successive attempts to amend the law in this way, see this Woman’s Place UK article.
Further attempts to amend the EA 2010 to make it unlawful ever to exclude GRC holders from a single sex service or role can be expected to recur.
As far as we know, neither the Equality Network/Scottish Trans Alliance nor Stonewall has changed from their position here.
To understand the wider ambitions of advocates of GRA reform, MSPs should ask it is still the long-term goal of these organisations’ to see the 2016 WESC proposal implemented.
5. What does this mean for equal pay cases?
If a GRC holder changes sex for the purpose of the Equality Act, it affects who can use them as a comparator in an equal pay case. A woman in a small team paid less than a man doing a similar job ceases to be able to bring an equal pay claim using her colleague as a comparator, if that person acquires a GRC. Such cases are currently very rare. A large increase in GRC holders can be predicted to make them more common.
We urge MSPs to look again at points made by the EHRC to the Scottish Government before the introduction of the Bill. They have noted that the law here is disputed and still evolving, and that changing who the GRA is for could have impacts related to the EA 2010.
‘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. The potential consequences include those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia.’EHRC letter to Scottish Government January 2022
‘The divergence of views is in part related to different understandings of the effect of the law, and in part to the impact of potential changes to the law, including on service providers and data users. It is also related to disputed terminology, which has evolved significantly since the GRA was passed in 2004. This has resulted in increasing numbers of court cases to resolve contested claims, with jurisprudence still evolving around use of the terms sex and gender, for example.’Letter from the EHRC to the Cabinet Secretary for Social Justice, Housing and Local Government 4 February 2022
Impacts on the operation of single sex spaces, services and roles are possible from extending GRCs to a much larger, more diverse group, without any change to the face of the Equality Act. We ask legislators to consider those possible impacts carefully and seriously as the Bill passes through the Parliament.
If MSPs are happy to see existing access policies for single sex service and roles based on self-declaration cemented in and extended, they should say so. If they are not, they should not make law crossing their fingers that that can somehow be avoided.
End note: what does this mean for who can access single sex spaces, services and jobs?
Sex is a protected characteristic under Section 11 of the EA 2010. It is lawful to operate a single sex service, where it is proportionate means to a legitimate aim. It is similarly lawful to limit employment to one or other sex in some circumstances.
- Spaces often/always provided separately by sex include changing rooms, hospital wards, rape counselling groups, domestic violence shelters, and prisons.
- Services/activities where providers can choose to work only with one sex include all women short lists, development programmes, close contact services such as pubic waxing.
- Jobs and tasks where employers can limit who does a task by sex include close personal care of disabled, unwell or elderly people, intimate medical examinations, strip searching.
If providers fail to use these powers, women can only challenge through claims of indirect discrimination. This relies on showing that women, as a group, have been disadvantaged by the failure. Indirect discrimination cases are often complex to prove and win, even where there is a clear case for single sex service based on privacy, dignity or safety.
All males are excluded from a single sex service for women based on their sex. This means that a male covered by the protected characteristic of “gender reassignment” (GR) under Section 7 of EA 2010, but with no GRC, cannot claim worse treatment than anyone else male, and cannot use a woman as a comparator. They must claim indirect discrimination based on GR. But, if holders of a female GRC are treated as female in law, they can claim direct discrimination compared to women without GRCs, based on having the protected characteristic of GR. Direct discrimination cases are easier to prove and win.
The more GRC holders there are, the more difficult it will be to persuade providers to use the powers they have in law to provide single sex services, even where the case for a single sex service can be strongly made. Providers will be more concerned about the risk of direct discrimination challenges from GRC holders than indirect discrimination challenges from women.
Under Section 22 of the GRA 2004, GRC holders also benefit from strong legal privacy protections. A provider cannot ask for proof of someone having GRC. Employers can be reluctant to ask, even when they have the right to. That leads to precautionary policies treating all those covered by the characteristic of gender reassignment as having the same rights as someone with a GRC: self-declaration in effect. Providers have already been strongly encouraged to adopt such policies by various organisations, who have wrongly argued they are required in law. The guidance now available from the EHRC makes clear this is not so.
Added to this, if GRCs are extended to a larger, more diverse group, it can be predicted that providers, in practice often meaning junior front desk staff, will become more reluctant to reject an assertion by any person, however they present, that they are legally entitled to access because they have a GRC (“the law says I’m a woman”).