Lucy Hunter Blackburn: Oral evidence to the Equalities, Human Rights and Civil Justice Committee, 31st May 2022

“Think of it this way. If a GRC is a sort of key, and you are going to hand out lots more copies, to a more diverse group,  the first job of legislators is to be really clear about what that key could unlock.”

“Speaking from 20 years working in policy making, most of that in what is now Scottish Government, and a decade researching aspects of public policy, I mean it very seriously when I say the process leading to the introduction of this bill has been exceptionally poor and a recipe for bad law.”

Lucy’s introductory statement to the Committee

Good morning, Convener.

In the High Court of Northern Ireland last year, Mr Justice Schofield described a gender recognition certificate as conferring [I quote] “a significant and formal change in [a person’s] status with potentially far-reaching consequences for them and for others, including the State.”

These far-reaching consequences flow mainly from two sections of the Act, not mentioned by name in the Committee’s sessions so far.

Section 9 sets out the effect of a GRC. It provides that a person’s acquired gender becomes their sex for “all purposes” in law, except in a few defined circumstances.

Section 22 puts in place stringent privacy protections. It creates criminal offences for disclosing any information about a person’s past identity or current status as a GRC holder, if that knowledge was gained in an official capacity, again with limited exceptions.

A key question for the Committee is how these two sections interact with the Equality Act.

We and others sent a joint briefing to you about this, following comments made in the first public session.
We highlighted that the legal position here is unsettled and that several influential organisations believe a GRC does change somebody’s sex under the Equality Act, with implications for how organisations can practically provide single sex services, in line with the law.

I will mention one example from our briefing.

In 2017 a Scottish Government email recorded a member of the Equality Network’s staff telling civil servants that the use of sex and gender “interchangeably”, in section 9 was [quote] “intentional” and should be retained.

And that the wording’s purpose was to make sure that GRC holders would not be prevented from accessing services based on their acquired gender.

In a further internal note a civil servant then recorded that the government was keeping this wording in section 9 [quote] “for policy reasons’.

It is clear therefore that in developing this Bill both the Scottish Government and the Equality Network have viewed GRCs as much more than “just a piece of paper”.

That was in 2017. Much more recently, the Scottish Government has again demonstrated its belief that a GRC changes someone’s sex for the purpose of the Equality Act. Susan will say more about that.

In public, the government and its supporters may maintain that GRA reform as proposed here will not affect the operation of the Equality Act. But the Committee needs to dig much deeper into this.

We are of course at a disadvantage here because the minutes of the Committee’s private briefing with civil servants in March do not record what they said to you about this.

But think of it this way. If a GRC is a sort of key, and you are going to hand out lots more copies, to a more diverse group, the first job of legislators is to be really clear about what that key could unlock.

Meanwhile, there is no dispute that all GRC holders, and also in future all those who claim they have already obtained gender recognition overseas, will benefit from section 22.

The Committee therefore needs to consider what it means to extend such strong protection to a much larger, more diverse group, including young people still in school, based purely on self-declaration.

Three years ago the Scottish Government said it would tighten section 22. Instead, the Bill extends its reach.

Our written evidence to you discusses these points and others, including cross border effects, the far-reaching provisions for overseas gender recognition, and – very importantly – how the government has handled its assessment of potential impacts on women.

Coming back to Mr Justice Schofield, he said a GRC is “a major change in the status of the individual in the eyes of the law”. Understanding fully the nature of that change, and anything that is uncertain about it should be the Committee’s starting point.

Convener, speaking from 20 years in policy making, most of that in what is now the Scottish Government, and years since researching public policy, I am serious when I say the process leading to the introduction of this bill has been exceptionally poor and a recipe for bad law.

I hope the Committee will now correct rather than repeat these mistakes.

Background notes

1. High Court of Northern Ireland Judicial Review

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. The 2021 judgement states:

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)

2. Scottish Government and the Equality Network position on effect of a GRC

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

Gender Representation on Public Boards (Scotland) Act 2018
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
(April 2022)

Our full briefing note on the potential for GRA reform to affect who can access single-sex services is here:

3. MBM written response to the Committee call for evidence

Our full written submission to the EHRCJ Committee can be accessed here:

4. Equality Impact Assessment review

Our assessment of the Bill’s EQIA can be accessed here. It shows that the current EQIA is barely changed from that accompanying the draft Bill in 2019. This strongly suggests that the Scottish Government has not undertaken any further substantive analysis since then, nor fully explored the concerns raised in the last consultation.

5. Joint note on Scottish Government handling of gender recognition reform

This joint briefing note provides more detail on the Bill development process. The note argues that the Scottish Government’s policy processes have been inadequate, and that the Bill as drafted carries a high risk of becoming another piece of bad law, with unintended consequences which will be most damaging to women and to young people at their most vulnerable.

On 25 May, Lucy wrote to the EHRCJ Committee convener to address misrepresentation of the position of those with concerns about potential impacts on women and girls, and the depiction of mental health conditions as ‘stigmatising’. The letter is published by the Committee here (see Annex B).