Are women’s rights human rights?
‘[A] 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.’
Mr Justice Schoffield, High Court of Northern Ireland Judicial Review [2021] NIQB 48 para. 3
The Equalities, Human Rights and Civil Justice (EHRCJ) Committee Stage One report on the Gender Recognition Reform (Scotland) Bill states that a majority of its members support the Scottish Government proposals to reform the Gender Recognition Act 2004, to provide for the legal recognition of gender on a self-declared basis. In addition to removing all medical oversight, the Scottish Government also propose to lower the minimum age for gender recognition from 18 to 16 years old, and to open up the protections in the Bill to those who have changed legal gender overseas, irrespective of supporting evidence.
In its Stage One report, the Committee cites in support of its views several prominent organisations, including the Children’s Commissioner and the Scottish Human Rights Commission (SHRC).
This blog looks at the arguments put forward by the SHRC in support of the Bill. The SHRC is an independent public body, established in statute by the Scottish Commission for Human Rights Act 2006, funded by and accountable to the Scottish Parliament. More information on its role and work is available here. How it makes its case is important, because of the weight attached to the organisation.
We look behind the public statements and arguments made by the SHRC and assess the quality of analysis underpinning these. We look in most detail at how, following a divergence in positions on self-declaration between itself and the Equality and Human Rights Commission (EHRC), the SHRC sought to establish itself as a source of relevant advice on equality law, and consider how well the Commission undertook this role. Having previously deferred to its sister organisation the Equality and Human Rights Commission (EHRC), the SHRC has argued that the new concerns raised by the EHRC in January 2022 are not evidenced, and that a self-declaration model will not impact adversely on any other groups.
The SHRC view on gender recognition reform
The Commission submitted evidence to the second Scottish Government consultation on gender recognition reform in 2019 (see here), although not to the previous one in 2017. It has also submitted written evidence to the EHRCJ Committee’s call for views (here) and given oral evidence on the Bill on 21 June 2022 (here).
The SHRC appears to support a slightly more radical model of legal gender recognition than that set out in the draft Bill, insofar as it questions the need for any form of waiting or reflection period. In its submission to the 2019 Scottish Government consultation, it also supported lowering the age of eligibility for a GRC below 16 years old.
UK equality law
The relationship between the Equality Act 2010 and the Gender Recognition Act remains a contested area of law, as detailed in this briefing for MSPs:
At the point of the 2019 Scottish Government consultation on reform, the EHRC supported the move to a self-declaration model. In its submission to that consultation, the SHRC deferred to the EHRC on the interaction between a gender recognition certificate (GRC) and the Equality Act:
‘The Commission acknowledges there are a wider range of considerations outside of the scope of its response with regard to the legal and practical consequences of obtaining legal gender recognition. We have set out a basic outline of a human rights based approach to consideration of these issues. However, many of these relate to the operation of the Equality Act 2010. Our sister National Human Rights Institution and the Equality Regulator in Scotland, the Equality and Human Rights Commission, has addressed these issues in its consultation response.’
SHRC 2020: 5 our emphasis
The SHRC reiterated this separation of responsibilities in its comments on the draft impact assessments prepared by the Scottish Government:
‘As the Commission set out in our introduction, the issue of legal gender recognition engages both our own mandate and that of the Equality and Human Rights Commission Scotland. As such, we provide analysis of the following Impact Assessments from a human rights, and not Equality law perspective.’
SHRC 2020: 55 our emphasis
EHRC change of position
On 21 January 2022 EHRC Chair Baroness Kishwer Falkner met Cabinet Secretary Shona Robison to set out a revised EHRC position on the Scottish Government proposals, expressing a number of new concerns about the effects of change relevant to its remit in relation to the Equality Act. On 26 January, the EHRC put its concerns in writing.
On 11 February the SHRC wrote to Baroness Falkner, expressing concern that the position of the two organisations no longer aligned:
‘We have specific concerns about your Commission’s change of position on the value of introducing legislation to reform gender recognition processes in Scotland, given this now diverges from both our own analysis of the human rights issues engaged, and our previous understanding of your own position. We would therefore welcome the opportunity to better understand the detailed rationale behind this change, and to discuss the boundaries and interrelationship between our respective mandates on this subject.’
SHRC to EHRC, 11 February 2022
In March 2022 we asked the SHRC for its ‘analysis of the human rights issues engaged’, as they related to the EHRC’s change of position. Specifically, we asked for copies of all assessments that considered the impact of a self-declaration model ‘on different rights-holding groups, e.g., women, religious minorities and individuals with disabilities’.
In response, the Commission directed us to its submission to the 2019 consultation. This response, noted above, confined itself to human rights issues for those to whom GRCs might be extended. It did not discuss the impact of the proposals on the human rights of any other group, or for any groups in relation to matters covered by the Equality Act, and deferred to the EHRC on the latter, as the relevant expert body to comment on UK equality law,
SHRC advice to MSPs on the Equality Act
Following the EHRC’s change of position, the SHRC changed its approach and offered an opinion on the Equality Act in its evidence to the Committee.
The SHRC treatment of equality law in its published submission to the Committee provides only a simple set of assertions in relation to the Equality Act and other areas of concern, as reproduced below.
‘Regulation of equality law lies within the mandate of our sister NHRI, the Equality and Human Rights Commission and we will not comment in detail on equality law. However, existing legal protections are a relevant consideration in applying the fair balance test under human rights law, and so it is important to note that UK equality law allows a person’s trans status to be taken into account, whether they have a GRC or not, where there is an objective justification for doing so and where that is a proportionate means of achieving the aim. That position will not be altered by this Bill.For example, in relation to concerns that the Bill will lead to the removal of single-sex services or women-only spaces, in our view, obtaining a GRC should not have any effect on these protected spaces, as the exceptions provided by the Equality Act 2010 will continue to apply. We set out more detail in the table at p.19 below…’
‘This exception to the general rule precluding discrimination against trans people is available in relation to: accessing single-sex spaces; information held by employers (which may be relevant to the provision of intimate medical care); and participation in sport. These exceptions are available in appropriate circumstances whether or not someone has a GRC. The proposed reforms would not alter the EA’
SHRC 2022: 8, 18-19 our emphasis
The table referred to is reproduced here:
| Issue | Provision | Impact of GRC |
| Provision of women-only spaces | Single-sex and separate-sex services exception: Schedule 3, paragraphs 26 – 28 of the Equality Act 2010 | None |
| Jobs where women’s rights require services by someone of their chosen sex e.g. intimate medical care | Genuine occupational requirement exception: Schedule 9 Equality Act 2010 | None |
| Sport | Section 195 Equality Act 2010 permits restrictions on the whole category of those with the protected characteristic of gender reassignment in order to secure fair competition or the safety of competitors | None |
| Prison accommodation | SPS policy requires case by case risk assessment, regardless of whether a gender recognition certificate is held | None |
| Criminal justice – preventing and investigating crimes | s.22(4)(f) Gender Recognition Act 2004 stipulates that information can be disclosed of a person’s former gender for the purpose of preventing or investigating crimes | Holding a GRC does not prevent disclosure of information |
| Criminal justice – gender specific offences | s.20 Gender recognition Act 2004: a person can still be charged with a gender specific offence in relation to their original gender | GRC does not prevent relevant criminal charge |
| Data | Guidance by the Chief Statistician on ‘Sex, gender identity, trans status – data collection and publication’ | Details where distinctions between biological and legal sex can be made |
The brief discussion and the separate list in the table omits reference to entire elements of the Equality Act where sex is used as the basis of protection (such as equal pay claims and measures addressing barriers facing women) where there is no provision to make exceptions for those covered by the protected characteristic of gender reassignment. It appears to present the right of employers to limit recruitment for certain roles to persons of one sex only as being a narrower provision about holding information. It omits issues in other areas (criminal justice, prisons), such as intimate body searches. For those issues it includes in the table, it submits assertions but no supporting discussion of the legal arguments.
Most fundamentally, it fails to engage with the possibility that a change of sex under the Equality Act could be treated as material in law in any way, in any context where the Equality Act provides protections based on sex.
Referring to two recent cases in Court of Session, the Commission noted:
‘Neither provides a basis for analysing concerns about the impact of GRA reform. Rather, we consider that the effect of these cases is to demonstrate the nuance of which the law is capable – allowing for trans status to remain legally relevant where necessary, even once a GRC has been granted. For example, in the case of gender representation on public boards, the Court found that it was necessary to be able to define the protected characteristics of sex and gender reassignment separately, regardless of whether a GRC is held, in order to define the parameters of legally permissible positive action [under the Equality Act].‘
SHRC 2022: 22 our emphasis
This overlooks an immediately relevant development here. In April 2022, in contradiction of the SHRC’s assertion of a clear settled position, the Scottish Government issued revised Statutory Guidance on the Gender Representation on Public Boards (Scotland) Act 2018 which asserted that a GRC should be treated as relevant in positive active measures for women, and that this was compatible with the Court of Session’s ruling. This has subsequently become the subject of a further judicial review, in which the Scottish Government is defending this position.
In giving oral evidence in June 2022 the SHRC reiterated its disagreement with the EHRC. Barbara Bolton, then Head of Legal and Policy at the SHRC, said:
“We recognise and fully respect the role of the Equalities and Human Rights Commission as the regulator in relation to equalities law and enforcement in relation to discrimination. We have considered the Equality Act 2010 in relation to the bill because it is necessary to take it into account in carrying out a full human rights analysis because the act’s provisions already provide important mechanisms under our national law for how we apply the balancing mechanism”.
Bolton Scottish Parliament OR 21 June 2022 col. 28
We asked via Freedom of Information (FoI) for a copy of the full human rights analysis, and any related further assessments and supporting information held by the Commission, providing the basis for this statement.
The Commission directed us to its submission to the 2019 consultation and its written submission to the Committee. As already seen, the 2019 consultation simply deferred to the EHRC on matters related to the Equality Act, and the Committee submission contains only the basic material above.
The Commission also cited a publication by Professor Nicole Busby but was unable to disclose any unpublished internal analysis that showed how this report had informed its position. Relevant here however is that Professor Busby argues that there is a lack of legal clarity about the effect of a GRC, in those contexts where the Equality Act allows the exclusion of people with the protected characteristic of gender reassignment from single sex services. She notes, without suggesting any counter-argument, the EHRC view that a GRC may be relevant to a person’s rights and treatment:
‘The exceptions can operate whether a trans person has a GRC or not. However, there are some areas of uncertainty which arise due to the lack of clear guidance and decided case law. For example, it is unclear whether, a trans woman who has been excluded from a service or from shared accommodation and who wishes to make a claim of sex discrimination would require a GRC. 84… There has not been any case law in this area which means that the boundaries of what might be permissible in practice remain largely untested. There are many possible explanations for the lack of litigation… [including] that a lack of awareness of the law or a lack of clarity regarding its interpretation have prevented cases from being raised or pursued. Research which explored the reasons for the lack of case law in this context would be helpful.’
84 Although, as noted above (at 3.2) the EHRC has provided a statement which says ‘…a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.
Busby, 2020: 18-19 emphasis added
Like the SHRC Committee evidence, the Busby paper does not address the impact of a GRC in areas of the Equality Act where the Act does not provide that whether a person is covered by gender reassignment may be taken into account.
Prisons
As set out in the table above, the SHRC does not believe that reform will affect prisons. In oral evidence, the SHRC appeared to misunderstand prison policy in England, stating that “a GRC plays some role but it is never determinative of the placement of a prisoner” (Asante SP OR 21 June 2022 col. 31).
As explained here, GRCs do determine how prisoners are placed in England, in an identical way to sex (there has been a recent announcement that consideration of surgical status will added into the policy, but how and when that will be implemented remains unclear).
We asked for any information held and analysis the Commission had done on the policy operated in prisons in England for transgender prisoners.
In response the SHRC provided only a link to a copy of the judgment in R. (on the application of FDJ) v Secretary of State for Justice (2021), without any information on discussion or analysis held by the SHRC of that case. The case does not self-evidently support the SHRC position: the court endorsed as lawful existing MoJ policy, including its setting a higher bar for excluding GRC holders than non-GRC holders from female establishments. The Commission also stated that it held ‘a piece of preliminary analysis towards work due to be published, most of which is outwith the scope of your request and some of which briefly makes reference to policy operated in prisons in England for transgender prisoners’ which it refused to disclose.
In stressing that current prisons policy in Scotland ignores GRCs, the SHRC failed to recognise that the issue here is whether this GRC-blind approach will withstand legal challenge and the increased risk of a challenge being brought, if there are more GRC holders (for further detail, see this letter to the SPS, section 9). A Scottish Prison Service witness to the Committee noted that prisoners can be litigious, explaining ‘very few people want to be in prison, so it is an environment that invites challenge’ (Kerr SP OR 7 June 2022 col. 18).
Human rights law
The SHRC believes that the Bill will move Scotland “significantly closer to the standards that are set out in international law in the area” (Duddy SP OR 21 June 2022: col. 21).
Yogyakarta Principles
To support this view, the SHRC cite the Yogyakarta Principles and the Council of Europe Resolution 2048. In giving evidence to the Committee, SHRC Chair Ian Duddy stated:
“When we look beyond the European convention we can see from a range of sources that self-determination has emerged as the necessary human rights standard. We set out those sources in our written evidence; they are the Parliamentary Assembly of the Council of Europe… and the Yogyakarta principles”
Duddy SP OR 21 June 2022 col. 21
As the Scottish Government’s 2019 consultation paper (para 3.38) and EHRCJ Stage One report note, the Yogyakarta Principles are non-binding. The Council of Europe Resolution similarly creates no obligations in international law.
In written evidence to the Committee, Professor Robert Wintemute, an original signatory to the Yogyakarta Principles, has disputed that the principles are correctly represented as ‘international best practice’, arguing ‘There is no legal obligation to comply with any part of the Principles that goes beyond the case law of the European Court of Human Rights.’ Professor Wintemute has previously stated that women’s rights were not considered during the meeting:
“If I had thought through the implications of Principle 3 [the right to self-declaration in law], I would have had to consider the potential for conflict with women’s rights, but I didn’t…Women’s rights weren’t raised…There was a feeling that transgender people have suffered and they are saying this is what is needed — the implications of no surgery and self-ID had not dawned on us back in 2006. So far as I remember nobody was thinking about males with intact genitals gaining access to women’s spaces…I see now that Principle 3 was silent on whether a diagnosis, a waiting period, or any other safeguards could be required…The issue of access to single-sex spaces largely affects women and not men. So it was easy for the men in the group to be swept along by concern for LGBT rights and ignore this issue.”
Wintemute, quoted in Bindel and Newman, 2021: ‘The trans rights that trump all
European Convention of Human Rights (ECHR) compatibility
In its written evidence to the Committee, the SHRC note ‘The issue of medical diagnosis was the subject of a Judicial Review in Northern Ireland in 2021 which, while not binding in the Scottish context, provides a recent analysis of the 2004 Act’s compatibility with the ECHR.’
The court found that moving to a self-declaration model is not a requirement of recent rulings from the European Court of Human Rights. The case was summarised in Scottish Legal News:
‘The court held that the 2004 Act struck a fair balance between the rights of the individual and the community as a whole… the court held that the applicant failed in her claim that a diagnosis was a breach of her Article 8 rights. However, the court held that the requirement to prove that she was suffering from a “disorder” was unnecessary, unjustified and incompatible with the ECHR…’
Scottish Legal News, 21 May 2021 our emphasis
In their written evidence to the Committee, however, in relation to the requirement for a diagnosis of gender dysphoria, the SHRC described the outcome as opposite to that in the ruling:
‘For example, a recent decision the High Court in Northern Ireland found that the requirement for a diagnosis of gender dysphoria breached the right to private and family life.’
SHRC 2022: 11 our emphasis. Note: Article 8 covers the right to family and private life.
Had that been the outcome, the proposed remedy agreed with the court would have been to remove the requirement for a diagnosis. Instead, the court accepted that it was only the description of gender dysphoria as a ‘disorder’ in the definitions section of the Act that required to be changed for compatibility with the ECHR. UK Government ministers have since indicated their intention to amend that section of the 2004 Act to address this.
The SHRC’s evidence to the Committee meanwhile overlooks other parts of the same judgment which are relevant to assessing whether a person with a GRC obtains new legal rights which are relevant to others. In particular, Mr Justice Schofield described a gender recognition certificate as conferring:
‘a major change in the status of the individual in the eyes of the law…’
And stated:
‘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)
Minimum age and the Cass Review
In relation to age, the Commission supports lowering the minimum age to sixteen, with a view to reducing this further. Their written evidence to the Committee refers to their previous submission:
‘We concluded that reducing the minimum age at which a person can apply for legal gender recognition from 18 to 16, is in line with the Age of Legal Capacity (Scotland) Act 1991 and the approach of the Convention on the Rights of the Child. We also suggested that consideration should be given to extending this to persons under the age of 16 in line with an evolving capacities approach, whilst ensuring appropriate safeguards are in place.’
SHRC 2022: 17
The Commission does not believe that the Bill should be paused to wait for the outcome of the Cass Review, which it views as only relevant to England. The Stage One report states:
‘The SHRC did not think the Bill should be paused in relation to the Cass review. It said the findings, for England, are relevant for the provision of gender identity healthcare but that it was not clear how this relates to provisions in the Bill, although there might be useful learning in relation to the provision of medical services.’
Scottish Parliament 2022: para. 285
This position is drawn on to support the view of the majority of Committee members in the Stage One report:
Several observations from the interim Cass report are relevant here, for example, that social transition should be viewed as ‘an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning’, that an evidence base for an affirmation-only model is severely lacking, and that the best way to support young people experiencing gender distress has not been determined. It is not obvious on what expert grounds the view has been reached by the SHRC that these observations are irrelevant to considering reforms in Scotland, which will make available to all 16- and 17-years olds accelerated access to a change in their legally recognised status as a boy or a girl.
Impacts on women and girls
The issues above can all be related to one of the most sensitive contested areas here, namely the impacts on women and girls. Asked about that, the then Head of Legal and Policy at the SHRC said:
“the commission’s position is that we have now looked at the issue carefully on two occasions. We looked it in 2019-20, taking our mandate very seriously because we cover the rights of all people in Scotland and we always approach human rights assessment with a recognition of the interdependence of human rights; we take very seriously concerns that are raised about possible harmful effects on others—in this case, women and girls in particular. When we looked at it in 2019-20, we were not able to identify any objectively evidenced real and concrete harm that is likely to arise as a result of the reforms that are proposed.
When the bill came around again, the commission took a conscious decision to look hard at it again. In recognition of the time that had passed and the possibility that concerns had been clarified and that perhaps further evidence had been produced of real and concrete harm that might arise, we made a very conscious decision internally to devote to time to really assess it. We did so, and we have concluded, again, that we cannot identify any objectively evidenced real and concrete harm that is likely to result from the reforms.”
Bolton SP OR 22 June 2022 col. 26 our emphasis
We asked for sight of the analysis undertaken on each of these occasions.
We were again directed (see here and here) only to the SHRC’s submission to the 2019 consultation and written response to the Committee. The Commission told us it had no record of doing any other analysis on impacts on women and girls. The 2019 response provides no material on this issue and no analysis of it.
UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity
In addition to short sections on the UK equality law discussed above, the SHRC response to the Committee contains relevant material in a section on ‘international research’. This draws on a single source, a report produced in July 2021 by the UN Independent Expert (UNIE) on protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borlo, titled Practices of Exclusion.
This report explains it ‘analyses backlash against the incorporation of gender frameworks in international human rights law’. The Commission’s written evidence to the Committee (page 21) quotes at length from two paragraphs (63 and 64), which are drawn from a section of the report titled ‘Alleged impact on women’s rights’. The extracts cited by the SHRC are shown here, and the full section is provided below as an annex.
‘the claim that legal recognition of trans women per se threatens safe spaces … appears to draw on stigma about predatory determinism” and recommended “a risk management approach that should include all objectively identified risks for safe spaces for all women (including lesbian, bisexual and trans women), which cannot promote, replicate or condone stigma or stereotypes.’
UNIE cited in SHRC 2022: 21
‘Some submissions presented the claim that segregated spaces, particularly prisons, changing rooms and bathrooms, are threatened by the granting of access to trans women. The Independent Expert notes that submissions repeated (often verbatim) the same set of seven alleged incidents of trans women (or persons purporting to be trans women) causing harm to cisgender women in safe spaces. Even among the small set of cited cases, several of the incidents recounted in these submissions are factually contested.’
The response to our FoI shows this report was relied on as a sole source, without being subject to any recorded form of critical analysis. Its author is one of the most prominent advocates of legal systems of self-declaration. The Commission can provide no evidence of undertaking any assessment of what limitations there might be on how the ‘evidence’ was conceptualised, how it was gathered, or how it was analysed. It does not appear to have considered how the author’s work might be influenced by his strong belief that self-declared gender identity should always or almost always be treated as taking priority over sex.
The risk of uncritical over-reliance on this report as a sole source is most directly illustrated by the Commission’s comments on sport. These are in full:
‘In relation to claims that trans inclusion in sport would have an adverse impact on women and girls in sport, UNIE pointed to decisions taken by the International Olympic Committee and World Athletics which ensure an inclusive approach with specific measures they have concluded are necessary to ensure fairness.’
SHRC 2022: 21
The SHRC submission makes no reference to the findings of two major subsequent reviews which have rejected the approach taken by these bodies. In May 2021, an extensive review by World Rugby concluded that measures suggested by bodies including the IOC were misconceived and that:
‘Transgender women may not currently play women’s rugby… because of the size, force- and power-producing advantages conferred by testosterone during puberty and adolescence, and the resultant player welfare risks this creates.’
World Rugby Transgender Guidelines
The submission also does not acknowledge a further major review conducted on behalf of the UK Sports Councils, published in September 2021. This concluded that:
‘As a result of what the review found, the Guidance concludes that the inclusion of transgender people into female sport cannot be balanced regarding transgender inclusion, fairness and safety in gender-affected sport where there is meaningful competition. This is due to retained differences in strength, stamina and physique between the average woman compared with the average transgender woman or non-binary person assigned male at birth, with or without testosterone suppression.’
UK’s Sports Councils, 2021: 6
Conclusion: are women’s rights human rights?
‘The Scottish Human Rights Commission is an independent public body that promotes and protects human rights for everyone in Scotland.’
SHRC, 2014: 2
Referring to the change of position by the EHRC, in oral evidence, the SHRC stated:
“if you are a human rights body and you oppose a proposed piece of legislation that would further the rights of a marginalised group, there is a considerable burden on you to set out clearly the basis for that.”
Bolton SP OR 21 June 2022: 30
The same principle of course also runs the other way. For the Scottish Government and those organisations supporting the proposed legislation, there is, equally, a burden to set out clear arguments and evidence to demonstrate that other groups, for example, women and girls and religious minorities will not be adversely affected. The general Public Sector Equality Duty applies to the SHRC.
The SHRC chose to defer to the EHRC when both organisations shared the same position on gender recognition, stating that UK equality law was outwith its scope, and only asserted itself expert in this area after the two organisations diverged. The Commission’s evidence to the Committee is limited and incomplete in its coverage of the Act. FoI responses show it holds no more detailed supporting analysis to underpin its alternative reading of the Equality Act, while the published research it cites as relevant contradicts its assertion of absolute legal clarity and notes the EHRC’s view that a GRC has the potential to affect a person’s treatment under the Act.
Challenged on its understanding of prisons policy in England and Wales, it could provide no analysis of its own and only a reference which does not obviously support its reading of the position. Assertions made to the Committee we tested in other areas, on data (see here) and residency tests (see here) were also found to lack any records of support from work undertaken internally. It is unclear on what basis its feels qualified to take a strong organisational view on the irrelevance of the Cass review.
Most hard to defend, given assertions that it made a “conscious decision” to “look hard” at and “to devote to time to really assess” any potential for harm to women, in reaching a view that there is no relevant evidence, the Commission can point only to uncritical reliance on a single external source, which can easily be shown to provide only a partial account, and cannot produce a single piece of internal analysis that it thought was worth putting on file.
Referring to the EHRC’s change of position, the SHRC said:
“its current position has been set out in only a handful of letters without any more substantial documentation, reasoning or analysis.”
Bolton SP OR 21 June 2022: 30
Yet on critical topics where it has offered the Parliament an expert view in a sensitive and contested area, now including equalities law, the Commission’s own public statements amount to no more than very brief and incomplete observations, and FoI responses show that no further work has been undertaken of sufficient substance to be felt worth recording, even where the Committee was told such work had been done. Where it directs those interested to external sources, these raise more questions about the Commission’s position than they answer. Meanwhile, on a matter directly related to human rights, the Commission described the outcome of a centrally relevant case to the Parliament, in writing, as being exactly the opposite of what it was.
The SHRC is a Scottish public authority with statutory duties. It received funding of £1.1 million from the Scottish Parliament in 2020/21 and has seventeen staff (12 FTE), plus a full-time salaried chair and three part-time paid commissioners. MSPs rightly place their trust in it to support their work based on substantial careful analysis, and recognition of the limits of its expertise.
Quis custodiet?
Annex: Practices of Exclusion. Victor Madrigal-Borlo, UN Independent Expert (UNIE) on protection against violence and discrimination based on sexual orientation and gender identity (July 2021)
