Stage 1 Briefing on the Gender Recognition Reform (Scotland) Bill

Don’t assume: a GRC is only “a piece of a paper”

‘[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 in High Court of Northern Ireland Judicial Review describing the effect of a GRC (July 2021)

A Gender Recognition Certificate (GRC) changes a person’s status in law as either a woman or a man “for all purposes … subject to provision made by this Act or any other enactment or any subordinate legislation.”  (Section 9, GRA 2004)

Looking systematically at what a piece of legislation does in practice should be the starting point for any law reform. Nothing produced by the Scottish Government does this. Nor does the Stage 1 Report.

Don’t assume: GRA reform has nothing to do with the Equality Act 2010

On 9 and 10 November the Scottish Government will argue in court that a GRC changes someone’s sex under the Equality Act 2010 (EA2010).  

The Scottish Government told us: ‘whether an individual has a GRC may be a factor in the decision taken by a service provider’, in relation to accessing single sex services.  

If a GRC changes someone’s sex under the EA2010, it affects measures aimed at combatting discrimination against women, such as equal pay protections. It also makes it easier for GRC holders to challenge their exclusion from single-sex spaces and services, where providers are using the EA2010 ‘exceptions’ that allow the exclusion of those with the protected characteristic of gender reassignment. These arguments were set out in an earlier briefing to MSPs:

The meaning of the law on the exceptions is contested and service providers are already hesitant to use them. There is a serious risk that a very large increase in GRC holders will make providers even more reluctant to do so, for fear of facing legal action.

This fear will be exacerbated by strict privacy provisions that make it a criminal offence to disclose that a person has a GRC, if that knowledge is acquired in an official capacity. See here:

As the number and diversity of GRC holders increases, MSPs also need to consider that providers and other users will become more unwilling to challenge the presence of any male person asserting their right to be in a woman-only space.

As the Bill stands, in reality, if not in theory, single sex provision in almost any context is at risk of being accidentally legislated out of existence.

The EHRC (the UK’s statutory equalities monitoring body) is concerned about the interaction with the EA2010. Contrary arguments put to the Committee by the SHRC are not supported by evidence or analysis. See here:

Don’t assume: a criminal penalty for a false declaration is an effective safeguard against misuse

The Scottish Government remains unable to explain how it would be possible to show someone had sworn a declaration without meaning it, other than confessing to this.

Separate Scottish Government research stresses that fear of being caught is the key to deterrence, not the scale of penalty (see paragraphs 2.1 to 2.5).

Don’t assume: overseas experience provides reassurance there are no risks

Written submissions to the Committee, including ours, provided specific examples of problems in the UK and elsewhere, as a result of policies based on self-declaration, or legal change (see parts 9 and 10 of this document included in our evidence, and para. 1.66 here). In oral evidence the Committee was told about problems in the Irish prisons system (see col. 13).  

But there are also very significant obstacles to evidence-gathering, including a lack of systematic data collection (see part 1). These were set out for the Committee (e.g. paras. 1.53 to 1.75 here).

If legislation proceeds on the basis that absence of evidence means evidence of absence, it will be proceeding on a faulty assumption. We hope MSPs will legislate on more secure foundations.

Don’t assume: GRA reform has nothing to do with the Cass Review

“Social transition – this may not be thought of as an intervention or treatment, because it is not something that happens within health services. However, it is important to view it as an active intervention because it may have significant effects on the child or young person in terms of their psychological functioning…it is important to acknowledge that it is not a neutral act, and better information is needed about outcomes.”

Cass Review Interim report 2022: 62

NHS England is currently consulting on revised treatment guidelines for specialist gender dysphoria services for children and young people. Criteria for NHS support for social transition include a diagnosis of gender dysphoria, and that associated needs and risks have been considered and are being addressed or supported.

These developments are equally relevant to the care of young people in Scotland. Is a state-issued legal document that allows 16-years olds to change the sex on their birth certificate and affects what sex they are recognised as in many legal settings a form of social transition? If not, why not?

Don’t assume: Ireland shows there will not be any cross-border issues

Though sometimes claimed otherwise, GRCs issued by the Republic of Ireland are not recognised in the UK. The recognised countries are listed online.  Cross-border issues arise not only in the context of physical movement but also in relation to reserved functions.

Don’t assume: “most consulted on” means “most carefully thought about”

There has been no material change between the plans first consulted on in 2017 and the Bill now before the Parliament.

The Scottish Government has failed throughout to engage with questions and criticisms, or to meet established principles governing fair and reasonable consultation:

The Committee arranged to start taking oral evidence within 12 hours of the deadline for written responses. It received over 11,000 submissions. There is very little indication that these shaped the witness list, questions, or final report. The oral sessions, on which the Stage One majority report strongly relies, were heavily weighted towards those in favour of the Bill.

In the Stage 1 inquiry and report, some issues were barely touched on (e.g., UK cross-border issues, overseas gender recognition), others quickly dismissed (e.g., the relationship with the EA2010, privacy protections for GRC holders), others completely ignored (e.g., marriage and civil partnership, despite accounting for a large proportion of the Bill). The majority view in the Stage 1 Report is not reliable as a thorough examination of the arguments, issues, and evidence.