GRA reform and the Equality Act: “not a single person who votes for that Bill will be able to say that they were not warned”

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Yesterday, 4 October 2022, Lucy gave a presentation at an online seminar held by Woman’s Place UK, A Woman’s Place Is Working, on the importance of resolving the relationship between the Equality Act 2010 and the Gender Recognition Act 2004, in the context of Scottish Government plans to make Gender Recognition Certificates (GRCs) much more widely and easily available. She stressed the effort that had gone in to trying to obtain political and official-level focus on this point, over a long period. She concluded that:

[if] “the Bill proceeds as currently drafted, the scope for ripple effects that impinge on women’s rights in the workplace, and other contexts of course, is real. And we will make sure that not a single person who votes for that Bill will be able to say that they were not warned.”

Today, the Equality and Human Rights Commission (EHRC) has published letters it has written to the Scottish and UK Governments highlighting that in its view (emphasis added),

‘While the Equality Act makes provision to treat people with the protected characteristic of gender reassignment differently in relation to occupational requirements, separate- and single-sex services, sport and communal accommodation where justified, trans people will nonetheless be treated in line with their legal sex under all aspects of the Equality Act.  Thus, the operation of other provisions relating to sex discrimination across Great Britain, including equal pay between women and men, gender pay gap reporting, and measures to address disadvantages experienced by women, will be affected by the proposed changes to the law in Scotland

In our view, there are implications for the operation of the Equality Act 2010 whether or not the UK Government elects to recognise Scottish GRCs obtained under the reformed system in the other nations of the UK

The Commission’s view is that, before this legislation proceeds, the UK and Scottish Governments must work constructively together to minimise the risk of uncertainty and discrimination experienced by trans people – a marginalised group who already experience poorer outcomes in many areas of life – and other groups across Britain whose rights may be impacted by this change, while providing clarity for duty holders.‘ 

Kishwer Falkner, Chair, Equality and Human Rights Commission, letter to Shona Robison MSP, 5 October 2022

We welcome this statement, although in the absence of greater legal clarity, and given the privacy protections under Section 22, we do not think it can be safely assumed that holding a GRC will have no effect, even on those parts of Act which contain some provision allowing for different treatment on the basis of gender reassignment. In response to the EHRC statement we have said:

‘MSPs across all parties need to take seriously this major intervention from the UK’s equality watchdog. It vindicates concerns raised by ourselves and others about the importance of the relationship between GRA reform and the Equality Act, which the Scottish Government and others, including the SHRC, have repeatedly sought to dismiss. It also shows we have been right to highlight the failure by the Scottish Government to resolve cross-border issues with its UK counterpart before bringing legislation forward. We are pleased to see the EHRC plans to issue further briefing on these points to all MSPs before the Stage 1 debate’.

The remainder of this blog provides the text of the presentation made to the WPUK seminar. That it was given before the EHRC made its intervention is a reminder that nothing in the EHRC letter should be a surprise to Ministers, civil servants or MSPs.

WPUK speech text: Lucy Hunter Blackburn

Thank you so much for asking me to join this panel.

My background is in making and analysing policy and though I was an active trade union member across my formal career, I can’t claim to have the experience of tonight’s other speakers, with whom it’s a privilege to share this virtual platform, in frontline activism. I can say though that, like many women, in my time I’ve drawn on the protections put in place against sex discrimination at work and so I know first hand how valuable those are.

I’m going to talk about the current plans to reform the Gender Recognition Act in Scotland, the relationship with the Equality Act and the attempts to focus political attention on that. For reasons of time, I’ll focus on the implications for women in employment, but not because that’s the whole sphere of work for women, or the only place this relationship matters – of course it is not. I’ll repeat some things you’ve already heard. Other speakers have mentioned freedom of speech – I won’t touch on that other than to say that internationally one of the most rapid and most readily evidenced effects of the introduction of self-declaration laws and policies has been on women’s speech.

What the reform does

The Scottish Government is proposing to amend the Gender Recognition Act to make it easier for  people who live in Scotland or who were born here, wherever they now live, to obtain a Gender Recognition Certificate, or GRC.  It wants them to be able to do this simply by making what’s called a “solemn declaration” that they intend to live in what the law calls their “acquired gender” for the rest of their lives and have been doing so for at least three months to date, compared to the two years required at present. The age limit would fall from 18 to 16. Most significantly, the process will become completely separated from any sort of medical involvement.

There is no dispute that this will lead to a much larger number of people having these certificates. The Scottish Government’s estimate is that there might be 10 times as many GRC holders in future. However, they admit they don’t really know what they’re opening the way to here, and the number could be much larger. There is also no dispute that these certificates will be issued much more quickly.

Relevance to workplace rights

Why is any of that relevant to women’s rights in the workplace?

This comes down to what a GRC does.  The existing Gender Recognition Act says a person should be treated in law as a woman or a man, depending on what it says on their GRC, with some limited exceptions. 

The critical question here is whether a GRC changes your sex for the purpose of the Equality Act, as the bit of the law most relevant to protection from sex discrimination, in the workplace and more generally.

The law is silent on this point, and lawyers disagree about whether the way the Equality Act itself is written means GRCs are excluded from having any effect on how people are viewed, when it comes to sex discrimination. 

The Equality and Human Rights Commission believes firmly that GRCs do change a person’s sex  under the Equality Act. If they are right, then making GRCs more readily and widely available will matter in tackling sex discrimination in the workplace.  The EHRC has expressed concerns about the Scottish Government’s plans, because of the cross-over they see with the Equality Act.

Pay discrimination is an important example here. In the words of the EHRC, “When a woman claims equal pay, she must compare her pay to a man who she believes is carrying out equal work but is being paid more for it, known as a ‘comparator’”.   The more easily colleagues recruited and promoted as men are able to be re-categorised  as women, the more often women will find their comparator has been removed. Lawyers expert in this area have talked about the ability of a woman to bring an equal pay claim potentially being extinguished by a male compactor acquiring a GRC.

It’s worth being aware that UK-wide, the majority  of employees are in businesses which have fewer than 50 employees. In many other cases, equal pay claims will be based on looking at colleagues in relatively small units within a larger firm. Reclassifying one person’s sex from male to female could be enough in many situations to obscure a pattern of sex discrimination in pay or promotion. Data is also more likely to be affected in smaller settings.

And we can take this issue into other workplace settings covered by the Equality Act where sex is relevant, such as access to single sex facilities or opportunities. Although GRCs are protected in law as private documents, and the law puts in place strict privacy protections for GRC holders, there is nothing to stop a GRC holder from choosing to use their status in the workplace to assert stronger rights than they had before to being treated in line with their identity. And there is nothing explicit on the face of statute that offers uncertain employers anything to fall back on if they do. Pragna Patel talked about small providers being frightened of law suits and the same is likely to be true of small employers.

It’s important to say this isn’t a new issue – what will be new is the frequency and speed with which GRCs will be available in practice.  The number of GRC holders is currently very small – around 600 in Scotland.  What will change is the probability of women encountering this situation. Also important here, we think, may be the changing nature of the GRC holding population.

The persistent grey area

It’s important to stress at this point that the law here is grey. Not everyone thinks the EHRC is right. Lawyers’ views are divided at a senior level. What the limited case law means is contested.

But the Scottish Government deserves special mention here for riding two horses, depending which race it thinks it’s in.

When it talks about its plans to reform the GRA  it says the Equality Act is a separate issue and berates the EHRC for raising objections based on the interaction between the two statutes.

But over in the Scottish courts right now the same Scottish Government is defending a case, brought by For Women Scotland, entirely on the basis that a GRC does indeed change your sex under the Equality Act.

And it acknowledged, in a response to us which took it two years to write, that a GRC might make some difference in contexts covered by that Act, including to employers.

And if you think you must be missing something, and the government here could not be so brazenly attempting such a hypocritical, confused and contradictory line, then I’m afraid the answer is you are not missing anything, that is exactly what the Scottish Government is doing.

A way to think about this is to think of the Scottish Government being like a flat mate who decides to hand out lots of copies of the front door key, and when you complain, tells you you have no reason to worry, and nothing is changing, because they have not changed the lock.

Engaging politicians and others

Many women’s groups and individual women have tried to get the Scottish Government and MSPs to focus on the importance of understanding and clarifying the relationship between the Gender Recognition Act and the Equality Act.

They started doing it during the first consultation on GRA reform here in Scotland five years ago.

We – here  I mean Lisa Mackenzie, Kath Murray and myself who work together on this – came into this discussion later, in 2019, and flagged this up as one of the first things that we were worried about.

We and others have raised it in meetings with civil servants and with Ministers. With opposition MSPs. Written consultation responses, to the government and to the parliament. Sent letters. Produced briefings for MSPs. Provided detailed explanations of the issues, directly informed by legal input, and pithy short summaries. Put on briefing meetings with lawyers for MSPs. Given oral evidence to the Parliament. We have acted as individuals, separate groups and groups working together.

Women, mostly working in their unpaid time, have pushed every button that serious engaged citizens are told they should press. Repeatedly.

Where are we now

Has it cut through?

When proposals to change the law in Scotland are put to the Parliament, the first step is that an existing parliamentary committee undertakes an initial investigation and then writes a report summarising what it makes of the evidence it has gathered.  In this case, that job was given to the Equalities, Human Rights and Civil Justice Committee, when the current Bill was introduced at Holyrood in March. We’re expecting its report any day now.

I sat in on every oral evidence session the Committee held on the Bill, and want to take this opportunity to thank the 20 or so women who between them made sure that there was always at least one row of women in that room, visibly watching and listening.

There were times in the hearings where the message that it really matters whether a GRC changes how you are defined under the Equality Act seemed to cut through with some members. But the government has a majority here, due to the coalition between the SNP and the Greens.

If the message has not cut through, then what we won’t accept is that it’s because it needed making more often or more clearly. The audit trail for the government and the committee having been told this matters is exceptionally strong and clear.

To my mind, it will be a serious test of the Scottish Parliament’s effectiveness as a scrutiny body whether it picks up the central importance of the relationship between the Equality Act and the GRA, now, and in the later stages of the Bill still to come.

If it fails to, and the Bill proceeds as currently drafted, the scope for ripple effects that impinge on women’s rights in the workplace, and other contexts of course, is real. And we will make sure that not a single person who votes for that Bill will be able to say that they were not warned.