Stage 1 of the Gender Recognition Reform Bill: A Balancing Act?
On 28 June Shona Robison, the Cabinet Secretary for Social Justice, Housing and Local Government will give evidence to the Equalities, Human Rights and Civil Justice (EHRCJ) Committee on the Gender Recognition Reform (Scotland) Bill. Ms Robison will be accompanied by the Head of the Scottish Government’s Gender Recognition Unit and a Scottish Government solicitor. It is expected that this will mark the end of the Stage One evidence sessions.
When questioning the Minister, Committee members will take into account evidence put forward by witnesses in previous panels. This blog looks at who has given evidence over the last six weeks and their respective positions on the self-declaration of legal gender.
The balance of witnessess
The Committee has heard in public from representatives of 26 organisations and nine witnesses appearing as individuals. The public evidence sessions have taken place on seven dates, structured as 14 panels.
Table 1 shows the list of public witnesses, organised by date, whether or not the witness is supportive of self-declaration for GRCs (or if further consideration is required), and whether the witness is appearing as an individual or a group/organisation. Further information on the witnesses is provided in the notes. Our aim here is to show the overall balance of views heard on a given day: more detailed information on the make up of the individual panels, as well as links to meeting agendas and records can found in this blog.
Witnesses marked in italics are those whose position we think the Committee might conceivably not have known at the point of invitation: there are very few of these.
| Date | Supportive organisations | Supportive individuals | Non-supportive organisations | Non-supportive Individuals | Needs futher consideration |
|---|---|---|---|---|---|
| 17 May | Scottish Trans Alliance** LGBT Youth Scotland** Stonewall** | None | None | None | EHRC |
| 24 May | Children and Young People’s Commissioner Scotland† NUS Scotland# Sportscotland** Leap Sports; Scotland** | None | None | None | None |
| 31 May | Engender** Rape Crisis Scotland** Amnesty International# Just Right Scotland** | None | For Women Scotland# MBM# LGB Alliance# Keep Prisons Single Sex# | None | None |
| 7 June | National Records of Scotland* Scottish Prison Service* Church of Scotland#1 Humanist Society of Scotland# | Dr Kevin Guyan | Catholic Parliamentary Office# Evangelical Alliance# | None | None |
| 14 June | National Gender Identity Clinical Network for Scotland† | Professor Sharon Cowan | None | Naomi Cunningham, Barrister Karon Monaghan QC | None |
| 21 June | United Nations Scottish Human Rights Commission† | Robin White Barrister Dr Sandra Duffy Dr Peter Dunne Dr Chris Dietz | None | Professor Alice Sullivan | None |
| 22 June | Government of Ireland: Senator Regina Doherty2 | None | None | None | None |
Notes
* Scottish Government agency or NDPB
† Other Scottish public body
** 3rd sector with Scottish Government funding
# Third sector organisations or groups that do not receive Scottish Government funding
1 It is not clear whether the invitation was issued to the Church of Scotland or to the individual witness: if the latter, we assume the Committee may have been aware in advance that she was supportive of the government’s proposal.
2 We have assumed Senator Doherty was appearing on behalf of the Government of Ireland as Chair of the Senate and a member of a party in the governing coalition, although she referred several times to no longer being in government.#
Overview of witnesses’ positions on self-declaration
Overall, the Committee’s witness list has been constructed in such a way that it has heard overwhelmingly from supporters of the Scottish Government’s proposal to introduce self-declaration for Gender Recognition Certificates (GRCs).
Nineteen organisations supported the proposal to make GRCs available by self-declaration. Of these, 13 are either government agencies, other public bodies, or third sector bodies receiving Scottish Government funding. The Committee also heard from six academics or practising lawyers who supported the proposal. We think the position of all or almost all of these witnesses will have been correctly assumed at the point of invitation.
Six of the witnesses supporting the proposals had pre-existing connections with members of the Committee through the Scottish Parliament’s Cross-Party Group on LGBTI+, which is on record as wishing to ‘increase activity as a pressure group within the parliament’, including in support of legislation on gender recognition reform. On 26 April the group hosted non-member MSPs for:
a Q&A on the Gender Recognition Reform Bill with MSP members, LGBTI policy sector members, and representatives from LGBT Youth’s Trans Youth Commission…setting out what the Gender Recognition Act was, and why this needed to be updated… [so] MSPs could ask questions on anything they felt unsure about and could understand more about why reform was needed.
CPG on LGBTI+ Minutes 26 April Item 6 [Note: of the EHRCJ Committee members, only Alexander Stewart was present]
Three of the seven members of the Committee (the Convener Joe FitzPatrick MSP, Karen Adam MSP and Pam Duncan-Glancy MSP) are members of the CPG. Until 31 May, four Committee members were in the CPG: from that point Rachael Hamilton MSP replaced CPG member Alexander Stewart MSP. The CPG members giving evidence were: the Scottish Trans Alliance (STA), LGBT Youth Scotland, Stonewall Scotland, LeapSports, Engender and Dr Kevin Guyan. The STA is part of the Equality Network, which provides the secretariat to the CPG. None of the relevant members or witnesses referred to their connection to the CPG during the proceedings.
Six groups or organisations were called as witnesses who did not support the proposal, none of which are government funded. The Committee also heard from three academics or practising lawyers who did not support the proposal. One of these witnesses, Professor Alice Sullivan, was added to the witness list at very short notice, only after the Committee’s meeting on 7 June. Again, we think that the position of all or almost all of these witnesses will have been correctly assumed at the point of invitation. The CPG on LGBTI+ has rejected requests to join it from two of these organisations: For Women Scotland on 25 January 2022 (more here) and the LGB Alliance on 26 April 2022.
One organisation not supportive of self-declaration for GRCs (Women and Girls Scotland) was invited to join the 31 May panel but unable to attend. It is not clear whether this explains why Keep Prisons Single Sex (KPSS) was invited later than other members of the same panel, or whether that invitation would have been made in any event, and a five person panel convened. We were invited on 6 May, had the presence of FWS and LGBA confirmed with us on 19 May, and KPSS were invited on 20 May.
Overall, the Committee therefore heard in public from 25 organisations or individuals who supported reform, compared to just nine that did not. All or almost all of these had a known prior position. It is not clear if any public witnesses other than Professor Sullivan were added after proceedings began, although comments made in proceedings suggest that the Scottish Prison Service at least was a late addition.
The Committee has also held private sessions. It first held four separate panels on 26 April and 2 May, with a total of seventeen individual participants with trans identities who support the government’s proposal to introduce self-declaration. On 7 June it held a private meeting with a witness bringing a minority faith group perspective, who expressed concern about the proposal. Reference has been made to other private sessions held or planned, for which there are not yet minutes available. It appears most or all of these were only planned once the public evidence taking began. The Convener said on 7 June:
As has been agreed by the committee, the clerks are working with a variety of parents groups to organise an informal evidence session in order that we can hear from parents whose children have transgender identity. The clerks are also trying to arrange for the committee to hear informally from people who have transitioned but who have thereafter chosen to reverse that process. The clerks will publish details on those sessions in due course.
Convener Joe Fitzpatrick, 14 June 2022 col. 2
We are aware that the Committee has received other offers and suggestions for witnesses in public and private (our letter on that is here). Some of these we know it has not taken up, others it has acted on but its invitation has been declined (Dr Hilary Cass is known to be one) and others not mentioned by the Convener on 7 June may have been taken in private session and are still to be reported.
Issues not covered in the evidence sessions
In our letter to the Committee on 8 June, we highlighted several areas which the evidence sessions had still to explore in any depth. These included cross-border issues and the rights of spouses and civil partners: the first remains an area which has been dealt relatively briefly and the second not at all. A further aspect of the Bill we note has not been discussed is the proposals regarding gender recognition obtained overseas.
The wider context for choosing witnesses
The Committee’s evidence public sessions began on the morning of Tuesday 17 May, less than 12 hours after the deadline for written submissions (midnight, 16 May). Many of those appearing made no written submission, or appear to have submitted anything only after being invited: our evidence was only submitted on the closing date. The choice of witnesses therefore does not seem to have been much influenced by the written evidence submitted.
The Committee received 10,800 short form submissions and 800 long form ones. This appears to be five times more than any previous Scottish Parliament Bill call for evidence. A summary analysis of the short form ones was published on 23 May. Of these responses, 38% supported ‘the purpose of the Bill’, 59% did not and 3% had no view. For the proposal to make GRCs available without a diagnosis, the figures are only shown in an unlabelled graphic, but it appears around 34% supported self-declaration, 64% did not and 2% offered no view. A summary of the long form responses does not yet appear to be publicly available.
The Scottish Government received 17,058 responses to the most recent consultation on a draft of the current Bill, very similar to the one the Parliament is now considering (for the analysis of these see here). This ended in March 2020. Most responses were submitted by individual members of the public, with just 215 by organisations. No information is available on the balance of overall opinion (the consultation was structured in a way that made this very difficult). The organisational responses were summarised as follows: ‘a small majority of organisations broadly supported changing to a statutory declaration-based system. Around 4 in 10 organisations did not support changing to a statutory declaration-based system and around 1 in 10 either did not take a view or their view was not clear’.
There were 15,697 responses to the Scottish Government’s first consultation in 2018, 165 from groups or organisations. This consultation was structured in way that allowed for a summary of all the responses. This showed that 60% of those answering the question ‘agreed with the proposal to introduce a self-declaratory system for legal gender recognition’, 39% did not and 1% gave no view.
The Committee’s decision to limit itself to a single public panel looking at the Bill purely from a critical perspective, to have only three other panels including any witnesses not supportive of the Scottish Government position, and to have only one-quarter of its public witnesses (nine people in total) with a critical view, was therefore guided by something other than the balance of responses to recent consultations, even the one least recent and most favourable to the Scottish Government position.
Conclusion
Assuming most of the supportive witnesses heard in public were identified in advance, the Committee originally planned a witness list around three-quarters of which was pro the government position, plus the large group of individuals supporting the change it met in private session before the start of public proceedings. That analysis excludes the private briefing from civil servants the Committee received at its first meeting on the Bill (15 March) which is only minimally minuted (responses from the Scottish Government Bill Team are not shown) and the formal public evidence session planned with the Cabinet Secretary on 28 June. From the first private sessions with Scottish Government officials until the third public evidence session on 31 May, the Committee was exposed to no voices challenging the Scottish Government position, bar the Equality and Human Rights Commission’s (EHRC) call for caution.
There were 14 panel sessions in public in total. Excluding the unique case of the EHRC, nine of the public panels were made up wholly of supportive witnesses, one wholly of witnesses who were not supportive of self-declaration and three had witnesses with a mixture of views. Had Professor Sullivan not been added later, we assume there would instead have been only two with mixed views. Of the 56 people we know so far spoke to the committee in public or in private, only 10 (plus arguably the EHRC) appear to have been selected to bring any critical perspective on the self-declaration model.
A process designed to create the impression of a weight of evidence in favour of the government position, to limit the opportunity to air publicly in the parliament more challenging perspectives, and so to reassure those with any doubts about the Bill would look, we think, on paper, like the one outlined above. Once the Stage One Report is published, it will become clearer what sort of a balancing act the Committee has performed in practice.