MBM response to evidence from the Cabinet Secretary on the Gender Recognition Reform (Scotland) Bill

Our response to the evidence from Shona Robison, Cabinet Secretary for Social Justice, Housing and Local Government on the Gender Recognition Reform (Scotland) Bill.

The evidence from the Cabinet Secretary demonstrated that the Scottish Government still does not understand the interaction between the Gender Recognition Act 2004 and the Equality Act 2010. This is despite Scottish Government updated guidance on the Gender Representation on Public Boards Act which asserts that a Gender Recognition Certificate (GRC) changes a person’s sex under the Equality Act.

The Scottish Government appears to have no understanding that a change of sex in law under the Equality Act 2010 would allow a person to bring a direct discrimination claim based their new legal sex, and will affect their potential use as a comparator in an equal pay claim. Nor does it appear to understand the potential impact on current prisons policy and the likelihood of a legal challenge.

We are surprised that after five years consideration, the Scottish Government has introduced the Bill without obtaining agreement of the UK Government that Scots born elsewhere in the UK will be able to obtain a changed birth certificate.

The Cabinet Secretary made highly selective use of polling data to support the Scottish Government position. A large body of polling data shows that widespread support for self-declaration for a change of sex law remains to be established. Support for retaining some medical involvement in obtaining a GRC has repeatedly been found by polling to be an ordinary, widely-held position across the population as a whole, and within different groups, including among men and women.

The Cabinet Secretary was unable to address concerns about data collection and failed to appreciate the potential impact of small numbers in some specific contexts.

It is worrying that the Cabinet Secretary continues to rely on an absence of systematic evidence from other jurisdictions as evidence of absence. The Scottish Government also appears unaware of problems in countries and States that have introduced self-declaration, including Ireland, California, Norway, Denmark and Canada.