Still no answers

misted window with question mark

We are aware that women are writing to their eight MSPs to ask about their position on gender recognition reform ahead of this Thursday’s Stage 1 debate. This blog looks at recent correspondence between a constituent and her MSP. The constituent asked a number of questions about the Gender Recognition Reform (Scotland) Bill, which she chose to base on questions we have raised. We are grateful to her for sharing the response she received.

The MSP responding is also a Scottish Government Minister. Collective responsibility (see 2.1 and 10.4 here) means Ministers answering questions about government policy from constituents are expected to represent the government view. So it is likely that these responses were prepared within government and reflect the best answer it is able to provide for each question, making the lines offered of particular interest ahead of Thursday’s Stage 1 debate.

The response struggles to answer most of these basic questions about the government’s proposals. The response cannot, for example, articulate the legal effects of a Gender Recognition Certificate (GRC), describe what is meant by ‘acquired gender’, or show that it understands the implications for the operation of the Equality Act 2010. The response fails at one point to acknowledge that the Government is involved in directly relevant court proceedings. Of particular concern, the Scottish Government appears blind to the growing body of critical evidence on social transition, including the findings of the interim Cass Review.

Q1. What are the legal effects of a Gender Recognition Certificate?

‘A Gender Recognition Certificate (GRC) provides the legal means of changing a birth certificate. A GRC means a trans person is legally recognised in their acquired gender and can obtain a new birth certificate showing that gender. The GRC process has already been in law for 18 years. Not all trans people have GRCs and no-one is required to have one’

MBM: This says nothing about what being “legally recognised in their acquired gender” means, leaving the questioned largely unanswered in any substantial way.

Q2. What is meant by “living in the acquired gender”?

The draft bill states that people are required to live in their acquired gender for 3 months and to go through a period of reflection for three months. Applicants will have to make a legally binding declaration that they intend to live permanently in their acquired gender. This is a balanced and proportionate way of moving to a system that is more respectful of the rights of trans people.

MBM: This does not answer the question.

Q3. How will a false declaration be demonstrated?

The World Health Organisation’s revised International Classification of Diseases, approved in 2019, redefined gender identity related health, removing it from a list of “mental and behavioural disorders”. They took this step to reflect evidence that trans-related identities are not conditions of mental ill health and classifying them as such can cause distress. Moving to a system based on personal declaration rather than medical diagnosis will bring Scotland into line with well-established systems in Norway, Denmark and Ireland, and recent reforms in Switzerland and New Zealand.
The Bill creates an offence of making a false statutory declaration or making a false application for gender recognition, with penalties of up to two years imprisonment and an unlimited fine. These penalties will provide assurances against false application. However, it should be noted that evidence from other countries suggests that false applications are rare.

MBM: The first paragraph is irrelevant to the question, and the second paragraph does not answer it.

Q4. How will self declaration affect sex discrimination cases?

The Scottish Government strongly support the rights and protections that women have under the Equality Act 2010, including the single-sex exceptions. The bill does not amend the 2010 act. Nothing in the bill will erode or undermine women’s rights which we uphold, protect and support

MBM: The single-sex exceptions apply to the parts of the Equality Act dealing with single sex services and jobs and are irrelevant to sex discrimination cases.

The issue here is how a change of sex under the Equality Act will affect measures aimed at combatting discrimination against women, such as equal pay protections (by affecting who a woman can use as a ‘comparator’), or who else may be entitled to benefit from measures aimed at combatting sex discrimination (such as all women shortlists or the Scottish Government’s measures for appointments to public boards). The response does not appear to understand this.

Q5. What are the cross-border effects?

Applicants must either be the subject of an entry in a birth or adoption record kept by the Registrar General, or be ordinarily resident in Scotland.

MBM: This does not answer the question.

Q6. How will the Scottish Government monitor the impact of self-declaration?

The Scottish Government has committed to monitoring the impact that reforming the GRA will have.

MBM: Again, this does not answer the question, which asked ‘how’.

Q7. How will same-sex spaces and public services be protected?

It has never been necessary to have a GRC to use single sex services. The Equality Act 2010 means that single sex services; single sex employment rights and health services are protected. This bill does not make any changes to the Equality Act.
The Equality Act includes several exceptions which allow communal accommodation and other single sex services to exclude trans people where that is a proportionate means of achieving a legitimate aim. An example of this would be a group counselling session for female victims of sexual assault. It is for individual service providers to decide when to use single sex exceptions.

The Bill does not make changes to toilets or changing rooms. Trans people can and do already use these spaces, whether they have a GRC or not, and they have been using them for years and will continue to do so.

MBM: This ducks the key issue, which is not whether a GRC is a necessity now nor grants absolute rights of access. It is whether a GRC makes it easier for someone to challenge their exclusion from single-sex services and spaces when the exceptions allowing this are used (see here). When and how these exceptions can be used is already contested and providers are reluctant to apply them. The question is whether, if faced with a very large increase in GRC holders, providers will become more reluctant to use the exceptions, from fear of increased risk of facing threats of legal action.

In relation to toilets and changing rooms, the basis on which service providers lawfully exclude people of one sex is by relying on the Equality Act. It would be a serious misconception that these spaces are somehow in a separate legal category from others covered by the Equality Act.

It is not clear on what basis it is asserted that these spaces have been used in practice for a long period by the same large and wide group as will now be entitled to obtain GRC. Anecdotal evidence from small numbers of people that they have done so without adverse effects on others is subjective from their perspective and, even if taken at face value, no guide to the impact on women users of a change in the size and nature of that part of the male population expecting access to these spaces in future.

Q8. What about evidence from other countries with self-declaration laws?

Moving to a system based on personal declaration rather than medical diagnosis will bring Scotland into line with well-established systems in Norway, Denmark and Ireland, and recent reforms in Switzerland and New Zealand. There is no international evidence that predatory and abusive men have ever had to use a GRC to carry out abusive and predatory behaviour. They are amongst us, hiding in plain sight, as our husbands, fathers, sons and friends. Abusive and violent men do not need to pretend to be women to do so, which is why the Scottish Government is tackling the behaviour and the focus is on prevention.

MBM: The definition of ‘evidence’ here is narrow to the point of being meaningless. How would it ever be proved that a particular predatory male ‘had’ to acquire a GRC or ‘needed’ to ‘pretend’ to be a woman to carry out abusive behaviour and could not theoretically have found other ways to do so?

The response assumes the only potential ill-effects can come from people who can be shown to be ‘predatory males’ ‘pretending’, as distinct from any male person wishing to commit abuse who has simply taken advantage of any additional opportunities furnished by a lawfully obtained GRC.

The response shows no interest in:

– how far specific incidents involving GRC holders are likely to have come to light and been recorded (there are clear obstacles to that and, even allowing for that, no jurisdiction appears to have tried);

– how far introducing legal change of this sort may create a more supportive environment for abusive male behaviour by normalising more generally the presence of any male person in a woman-only space and discouraging challenge (no jurisdiction appears to have tried to monitor this);

– and how far such laws may have reduced women’s access to spaces where they feel safe and that their dignity and privacy is respected (again, no jurisdiction appears to be monitoring this).

It instead uses a single strawman test of ‘evidence’ to avoid addressing any of these points.

Q9. What about the impact on social conventions?

Legal gender recognition is not required for someone to transition socially or medically, or to change the gender or sex recorded on most identification documents, including passports and driving licence. The Scottish Government estimates that almost 24,000 adults in Scotland already identify as transgender.

MBM: This fails to answer the question.

Q10. How many people will apply for a Gender Recognition Certificate?

There will be no limit to how many people can apply for a GRC. Ireland has a similar population to Scotland, and it approved a total of 195 gender recognition certificates in 2021. Based on international evidence, the Scottish Government expects to receive around 250-300 applications a year. Currently, there are around 30 applications a year from Scotland.

MBM: This is the only question properly answered.

Q11. Why has the Scottish Government not taken women’s concerns or criticism seriously?

The Scottish Government has consulted extensively with the Scottish public during the development of this bill. It has undertaken two consultations, one on the principles of the bill and again on the draft Gender Recognition Bill itself.

The Bill is now with the Equality, Human Rights and Civil Justice Committee, and there will be a committee consultation, and the usual parliamentary scrutiny and consideration of the bill.

MBM: This confuses going through the motions of a process with engaging with substance. The Scottish Government invited comments on its proposals twice and then ignored any that raised concerns. This is not consultation in the sense that the courts have held meets the test of fair and reasonable. The government took no initiative to engage with women’s groups with concerns until shamed into doing so by critical press coverage in January 2022. Subsequent meetings too place too late to influence policy.

What the Parliament is doing is irrelevant to answering the question.

Q12. Has the Scottish Government addressed concerns about reducing the age for obtaining a GRC?

The Scottish Government has stated that the minimum age should be 16 as this aligns with when people in Scotland obtain a number of rights. In 2019 the Scottish Government conducted a public consultation on whether to lower the current minimum age for applications from 18 to 16 years. Additionally, the Scottish Cabinet consulted with the Scottish Youth Parliament, who spoke about how young trans people feel excluded by a system that denies them access to legal recognition. For example, they highlighted how young adults are currently unable to make the legal change of their birth certificate before moving into further or higher education or employment, and the negative psychological impact this can have.  

The Bill will change the minimum age for changing one’s gender on their birth certificate to 16. Schools, third sector bodies and the National Records of Scotland will provide support and guidance to young adults throughout this process. It is important to note that 16- & 17-year-olds can already change their sex on all other identification documents.  There are no plans to lower the age to those under 16.

MBM: A large minority (42%) of responses to the 2019 consultation raised concerns about the proposed reduction in the age (see paras 5.43 to 5.75 here): the reponse does not say what these were or how these were addressed. Quoting anecdotal evidence in support of the change provided by (it appears) a delegation from the SYP attending a Cabinet meeting also does not answer the question. Failing to mention the comments in the Cass Review Interim Report on the significance of social transition is a serious omission. The response fails to mention that to change the sex marker on a passport, those aged 16 and 17 require both medical confirmation and parental consent.

Q13. Why has the Scottish Government not considered any alternative reform options?

There is evidence from extensive consultation – two of the largest ever undertaken by the Scottish Government and also a UK Government consultation and survey – that trans people find the current system intrusive and invasive, overly complex and demeaning. Many trans people do not apply for a GRC because of these barriers.

The bill does not introduce any new rights for trans people. It simply aims to improve the process by which trans people can apply for legal gender recognition.

The Scottish Human Rights Commission, which is Scotland’s National Human Rights Institution, supports the Bill. The bill is also supported by many women’s organisations, which provide support services to women.

MBM: This does not answer the question. It does not follow, from some people’s negative experiences of the current system, that the only possible response is the reform proposed. The 2021 SNP manifesto stated: ‘‘In the next parliament we will work with trans people, women, equality groups, legal and human rights experts to identify the best and most effective way to improve and simplify the process by which a trans person can obtain legal recognition…”. This has not happened.

The second sentence is irrelevant to the the question and also misleading. The Bill not only changes the process by which people currently eligible can apply for legal gender recognition: it also significantly changes the eligible population.

The support of the bodies mentioned also does not justify that no other option was considered. As they are mentioned, however, it should be noted that the Scottish Human Rights Commission position on impacts on women is not supported by evidence or analysis. Of the unnamed women’s groups supporting the proposal, those most often quoted elsewhere are national level bodies directly responsible for providing only a limited proportion of services provided on the ground to women, especially the most vulnerable: the position they have taken is not shared by all frontline workers and organisations, although the constraints on their saying so publicly are significant.

Q14. Does gaining a Gender Recognition Certificate change a person’s sex for the Equality Act 2010?

The 2004 Gender Recognition Act is separate from the 2010 UK Equality Act, which is reserved. The Equality Act ensures that gender reassignment is a protected characteristic, irrespective of having a GRC or not, just as it ensures sex is a protected characteristic. The bill does not change the Equality Act.

MBM: This response extraordinarily omits to mention that the Scottish Government is due to argue in court next month that a GRC should be treated as changing a person’s sex under the Equality Act 2010 (in a case concerning measures related to the representation of women on public boards).

Q15. Is this in the best interests of children?

Yes, this reform is in the best interests of Scotland’s young people. Young trans men and women are some of the most stigmatised individuals in our society. Many trans people find the current system for obtaining a Gender Recognition Certificate to be intrusive, medicalised, and bureaucratic. Through removing the requirement for a medical diagnosis and evidence, and by shortening the minimum amount of time that people must have been living in their acquired gender for, the process will become quicker and easier. 

MBM: Assertions highly open to question. See Q12 and Q13.

‘I will be supporting the Scottish Government’s Gender Recognition Reform (Scotland) Bill. Stage 1 consideration of the Bill will be taking place in Parliament soon and I would be happy to keep you updated on the bill’s progression.’   

The responses provided repeatedly fail to answer the question asked, digress and pad with irrelevant material, omit significant information, and make questionable or confused assertions. We must nonetheless assume that, after five years of policy development, they represent the best Ministers can offer on each of these points.