Women, sex and the Equality Network: lifting the fig leaf

Discussion on the relationship between the Gender Recognition Reform (Scotland) Bill and the Equality Act has largely focused on the law as it is. This blog looks instead at what one of Scotland’s leading trans advocacy organisations – which has pressed for self-declaration as a principle, in policy, and in law – has said about how the law here should work, as context for understanding their position on gender recognition reform.

We argue that more attention needs to be paid to what this organisation thinks about women’s rights and that here there is a gap between what it has said to MSPs during the Bill process and its actions and words in other contexts. We urge MSPs to ask more questions about what this organisation’s ambitions are with regard to women’s rights, and precisely where reform of the GRA fits into that. We conclude that legislating for reform of the GRA as planned will chip away further at sex as a usable, functional boundary for services on the ground, so that parts of the Equality Act protecting women’s ability to draw lines based on sex with certainty, when it matters to them, will become a dead letter. The outcome of a current court case on a separate piece of legislation might help prevent that. However, that will not be settled before the Bill process is finished, and it could go either way. So the only reliable way that MSPs can reduce the risks here is to amend the Bill to place a firewall between Scottish Gender Recognition Certificates (GRCs) and the Equality Act, on the lines suggested by the EHRC and in Foysol Choudhury MSP’s Stage 2 amendment (No.104).

What is the issue?

As we discuss here sex is treated in the Equality Act 2010 as having two relevant dimensions for the purposes of gender recognition reform. The EHRC’s most recent briefing to MSPs stresses that both these matter.

• The first relates to anti-discrimination protections, such as equal pay protection and measures actively combatting discrimination. In these areas, the EA2010 makes no specific provision about people with the characteristic of gender reassignment.
• The other relates to single sex services and spaces, jobs and sport, where the EA2010 does allow for anyone biologically male, however they identify, to be excluded if certain conditions are met. The ability of women to set boundaries related to sex can be justified for reasons of privacy, dignity and safety, as explained by the EHRC in recent guidance on single sex services and spaces. Here we would include here women’s sense of safety.

On the second of these, the legal discussion gets complicated. The political discussion here often disappears into discussion of exemptions and exceptions, codes, guidance, and what is meant by ‘case-by-case’.

The certainty principle

But the basic principle at stake is simple, namely certainty.

The certainty principle means that a woman can be straightforwardly sure, when it matters to her, that a person who will be performing a physically intimate procedure on her, or providing any other service or sharing any space where questions of privacy, dignity or safety arise will be the same sex as she is.

It is about what, for instance, a woman can confidently assume when she sees something like this:

Sex Matters has published more material on this point.

Not all women will care, or care equally, or in the same situations, about sex and certainty. But many will, at least sometimes, for themselves or for a vulnerable relative or friend. And no woman can give consent for any other here.

It is also worth emphasising here that a GRC is not a sex-invisibility cloak. In court recently, Counsel for the Scottish Government appeared to argue that once someone had changed their birth certificate using a GRC, it would be more or less impossible for organisations to distinguish between those born female and holders of a female GRC.  This is at odds with reality. While it may become impossible to prove sex on paper once someone has changed their birth certificate using a GRC, the law cannot mandate that other people become sex-blind, or switch their perception of sex, based on an act of speech, cosmetic changes, or state certification. Nor does this thinking reflect contemporary activism, its rejection of ‘passing’ as an appropriate concept and the reality of a population for which ‘trans visibility’ is of increasing importance.

How much do supporters of the current Bill think that certainty matters?  

This can be broken down into four questions, about what people believe:

1. Should a woman ever be allowed certainty that a person in the circumstances above will be the same sex?
2. If so, should such certainty be relatively ordinary or relatively rare?
3. How difficult should it be to achieve such certainty; for example, should it require personal negotiation?
4. Should it require a woman to share personal information, possibly revealing intimate personal history? 

Equality Network/Scottish Trans: gender identity in policy and law

The Equality Network (of which Scottish Trans is part)¹ is widely regarded as the lead body in Scotland advocating for policy and legal changes in relation to gender recognition. It has been a fixture in Scottish politics since the Sottish Parliament was established and works closely with other organisations such as Engender. It is one of the main organisations that politicians and civic leaders in Scotland look to for advice and guidance on LGBT issues. We discuss further below why we concentrate here on the Equality Network, mainly as it operates though its Scottish Trans branding.

The EN/ST has promoted policies and laws that prioritise gender identity over sex for more than decade, with the Scottish Prison Service an early focus (see here). FoI responses show the Scottish Government working closely with the Equality Network in 2017 on how any new law in Scotland should be worded (see below). The EN/ST funding application to the Scottish Government for 2017-20, submitted in March 2017, for its ST-related activity highlighted this as work for which funding would be used.

The reference to ‘impacts on wider legislation and public sector practices resulting from reforms‘ to the GRA is worth noting. As shown below, denying any wider impacts on law and policy from GRA reform has been central to the EN/ST’s response to criticism. The application does not describe these impacts in any further detail, although work under this strand is later described as including ‘to improve the inclusion of transgender people within single sex services.’

The EN/ST and women’s rights

Women raising concerns about self-declaration and GRA reform are often (usually) asked what provisions should be made for male people who identify as women in particular contexts. We note however, that those supporting self-declaration are not usually asked, at least in public, what to do for women who care about the sex of another person in a specific situation.

The EN/STA witness was not asked this question when giving oral evidence on the Gender Recognition Reform (Scotland) Bill. Journalists rarely mention having approached the EN/STA for its view on women’s rights in relevant media stories (as here this week). If it is asked, it generally declines to comment or is unavailable.

Yet its view on how far women should be allowed to care about other people’s sex in certain situations is crucial to understanding its ambitions in promoting reform of the GRA.

The EN/STA points to its close relationship with Engender, which acted as referee for its 2017-20 funding bid, and some other groups funded by the Scottish Government to represent women, when policies it promotes are criticised for their impact on women and girls. 

Giving oral evidence on the Gender Recognition (Reform) Scotland Bill, Vic Valentine of the EN/ST said “Most services such as Women’s Aid and Rape Crisis Centres in Scotland have been inclusive of trans women for many years regardless of their GRC status.”

However, as the HEAL Survivors group points out, trans inclusion can be achieved in different ways. They have told Rape Crisis Scotland that applying the approach promoted by the EN/ST and others – which assumes that identity overwrites sex – is causing some women to self-exclude from rape crisis services, because it leaves them unclear how (and even if) they can ever be certain that they will not encounter anyone male, whether as a staff member or user.

What rights does the EN/ST think women should have?

Given where we are in the Bill process, it is timely to ask what rights the EN/ST believe women should be entitled to. It would be better if MSPs and journalists asked this question directly, although in the absence of this happening, we can draw on past lobbying, public statements and actions for insights.

2015: Single sex services and jobs, Women and Equalities Select Committee

The 2015 EN/STA submission to the Women and Equalities Select Committee Transgender Inquiry stated that the Equality Act should be amended to ‘Remove the exception that allows single sex services to discriminate against trans people’, arguing that this breached trans people’s privacy rights under Article 8 of the European Convention on Human Rights (ECHR). It also called for the removal of the genuine occupational requirement (GOR) ‘allowing some jobs to require applicants must be cisgender and replace it with a GOR allowing posts delivering trans-specific services to require applicants must be transgender’.

Other LGBT groups, including Stonewall, did the same and the Committee adopted this proposal in its final recommendations. It was rejected by the UK Government.

Had this bid been successful it would have remained lawful to exclude anyone male without a GRC from single sex jobs and spaces simply on the grounds of being male, both in biology and law. There would no longer have been lawful grounds, however, for excluding anyone certified as female using a GRC if that GRC changed whether they counted as a man or a woman under the Equality Act.

2016: Scottish Parliament Equal Opportunities Commitee

In 2016 the former Manager of Scottish Trans told the Scottish Parliament Equal Opportunities Committee that the exceptions were “wrong and unfair” noting that violence against women services in Scotland operated on a trans inclusive basis.

We would also like the exceptions that currently exist to be removed. At the moment, an employer that hires only women, for example, can refuse to hire a trans woman even if she has been many, many years transitioned. That is not appropriate. We are really pleased that women’s equality organisations and violence against women services in Scotland have been trans friendly. As far as we are aware, none of them has used that possible exemption and they employ trans women in women-only posts. However, in England, such bodies sometimes use that exemption, which is wrong and unfair.

James Morton, Scottish Trans SP OR 4 February 2016 cols. 17-18 (our emphasis)

It is not clear if the EN/ST has now abandoned this position. We are not aware that it has undertaken not to advocate for this again. It has however expressed support for further devolution of equality legislation, as part of a joint response to the National Advisory Council on Women and Girls (NACWG) survey on ‘Creating an Intersectional Gender Architecture’. This position is consistent with the view previously expressed by James Morton, who also told the Equal Opportunities Committee that legislating for GRA reform in Scotland could ‘make it a lot easier’ for reform in England and Wales:  

By its design, the Scottish Parliament is easier for trans people to engage with and considers legislation in a slightly different way from the two-house system at Westminster. Scotland should lead the way and put down a blueprint, which will make it a lot easier for the government in England to legislate for England and Wales and get such a bill successfully through the House of Lords.

James Morton, Scottish Trans SP OR 4 February 2016 cols. 17

2017: Wording of the Gender Recognition Act

Internal Government emails obtained through FoI show discussion in the Scottish Government in 2017 about the wording of Section 9(1) of the Gender Recognition Act 2004. At least one official queried whether the conflation of sex and gender in the 2004 Act should be tidied up, by limiting references to gender. The EN/STA were consulted:

At Monday’s meeting, EN/STA set out why they are content with the terms sex and gender being used interchangeably [in Section 9 of the GRA]. When the GRA 2004 was being developed, Press for Change suggested the wording used in section 9 where sex and gender are used interchangeably. [redacted] advised that this was intentional in order to prevent trans people from being discriminated against in terms of their sex. Their view was that there was a risk that service providers, etc. would say something along the lines of “the act means we recognise your acquired gender identity, however, your sex hasn’t changed” and trans people would still be denied services.

Internal Scottish Government email 1 September 2017 10:39. SG FoI release p.49

A GRC is clearly envisaged here by the EN/ST as an instrument which will help male people who identify as women obtain to access single sex services for women.

2018: Statement on what women should have to do

In 2018, as part of an exchange on intimate examinations on Twitter, the EN/ST stated:

On this thinking, no women-only job, service, or space should be assumed by any woman using it to only encompass women, defined as a biological sex. A woman should always be prepared to encounter a male person who identifies as a woman, unless she has made a case in advance not to do so, based on an exceptional need, sharing if necessary sensitive personal history (that she may not have disclosed to others).

We believe this is an inhumane approach, which can be subject to identical criticism to that directed to the two-child cap (the “rape clause”).

2022: EN/ST webpage on the Equality Act

The EN/ST webpage on the Equality Act largely provides uncontroversial advice on dealing with situations of harassment or discrimination based on gender reassignment in settings that raise no conflict of rights with women.

For single sex services, it directs readers to the EHRC Code of Practice from 2011 which argues that the exclusion of a person with the characteristic of gender reassignment from any single sex service provided for the sex with which they identify should be highly exceptional  (3.59-3.60). There is controversy over the Code’s approach².  We assume here however that the EN/ST promotion of the Code as the definitive reading of the law is not just because it believes this is what is required, but is in line with a belief that the very restricted reading is what should happen, given the continuing of the exceptions.

The webpage is silent on single sex jobs (the subject of its December 2018 tweet). 

On sport it mis-describes the Equality Act, failing to make clear that, as the Explanatory Notes to the Act describe, it is “lawful to restrict participation of transsexual people in such competitions if this is necessary to uphold fair or safe competition, but not otherwise.”

It does not comment on positive anti-discrimination measures, or issues such as equal pay comparators.

November 2022: For Women Scotland (FWS) court case

On 9 and 10 November, a case was heard in the Court of Session to consider if a GRC changes whether someone counts as a woman or man under the Equality Act. FWS, who brought the case, reflect on it here. The case is immediately concerned with the operation of a positive anti-discrimination measure, for which there are no exceptions based on gender reassignment, although the decision will affect how “woman” (and “man”) should be interpreted across the Equality Act more generally.

It emerged during the hearing, for the first time as far as we are aware, that the EN/STA had made a submission to the court in support of the Scottish Government position, which is that a GRC changes a person’s sex for the purpose of the Equality Act. The EN/ST does not appear to have published its submission. We understand it was prepared by Dentons, a major legal firm which gained some attention in 2019 when it produced a report describing how reforms in this area have been pursued in different jurisdictions ‘under the radar‘. Such interventions may be done pro bono or at cost to the client. It is not clear which applies here. The outcome of the case will not be known until into the New Year, and whatever the outcome, it may be appealed further.

Putting the pieces together

A GRC granting a change of sex for the purposes of the Equality Act, plus the lobbying position taken by the EN/ST in 2015/16 would remove any legal mechanism for providers to limit any job, service or space to women (as a group defined by biological sex) in any context. That’s because it would appear to leave no lawful way to exclude anyone male who had acquired a female GRC.

Add to that self-declaration as the means of obtaining a GRC, and the implied policy position here would be that any male person able to make the necessary declaration plausibly would acquire completely identical rights in law to any woman to use – and provide – any single sex service.  

However, even if abolishing the exceptions is something the EN/ST no longer believes in as a principle,  if a GRC changes someone’s sex for the purposes of the Equality Act, then this will still  make it easier for a person to challenge exclusion (see here, a view also reflected in the EHRC’s comments on single sex schools here) and so issuing many more GRCs will create new pressures that chip away at the use of the exemptions in practice.

The EN/ST position also means that a female GRC would give absolute access to any anti-discrimination measures for women, where the Equality Act already provides no grounds for excluding a person based on gender reassignment. It would have other effects under anti-discrimination law, such as removing a male person from being an equal pay comparator.

Gearing up

Working with the EN/ST as one of two ‘policy partners’ JustRight Scotland, a law centre towards which the Scottish Government contributes some funding, has set up the Scottish Just Law Centre. JustRight states its aim here is to ‘use the law as a tool for social change, focusing initially in the areas of disability justice and trans justice, to make the case in Scotland for greater strategic use of the law and legal remedies to reduce inequality and discrimination’. The centre is currently actively seeking test cases ‘for alleged trans discrimination, [where] the potential client has…unjustified discrimination within, or unjustified exclusion from, a single sex facility, service or job’.  

The EN/ST public position on the GRR Bill and the Equality Act     

The EN/ST has long argued as here in 2019 that:

Reform of the Gender Recognition Act will not alter the Equality Act 2010 provision allowing women-only service providers the flexibility to treat a trans woman differently from other service users if that is proportionate for the specific circumstances involved.

James Morton, Scottish Review 2 April 2019

Since the introduction of the Gender Recognition Reform (Scotland) Bill, the EN/ST has rested heavily on the existence of the exceptions in the Equality Act – which it argued in 2015 should be repealed.

In its written evidence to the Committee, under ‘What the Bill doesn’t do’, the EN/ST noted:

There is an additional exception in the Equality Act 2010 that allow single- or separate sex service providers to treat trans people less favourably if it is a proportionate means of achieving a legitimate aim. 

Scottish Trans/Equality Network. Submission to EHRCJ Call for Views, 2022

It did not mention its earlier lobbying against the exceptions.

No single or separate- sex service is required to use this exception, and many such services have been operating in a trans inclusive way, with trans men accessing men’s services and trans women accessing women’s services, successfully for a significant number of years in Scotland.

It was not asked any questions in the oral evidence hearing about the impact of such policies on women’s ability to know what to expect in settings advertised as single sex, how to manage their boundaries round the opposite sex or whether it thinks this matters.

The submission states that obtaining a GRC:

will not change who is protected, or the extent to which they are protected, under the Equality Act 2010. It will not change the operation of the exceptions that allow single-sex services to treat trans people less favourably where that is a proportionate means to a legitimate aim, and it will not change who those exceptions apply to.

The submission does not mention that the EN/STA believes that a GRC does and should change a person’s a sex under the Equality Act, and that they have argued to government that this has implications for the ability to access single-sex services.

In contrast to its webpage, it highlights that for sport, the law allows ‘trans people to be treated differently in gender-affected activity (activities where the average differences between men and women would lead to disadvantage in competition) if this is necessary to guarantee fairness or safety.’

Giving oral evidence, Vic Valentine of the ST stated:

in terms of how the law works and how decisions are made within the confines of the Equality Act 2010, nothing will change by changing how a person can apply for gender recognition.

In its Stage 1 briefing, the EN/ST told MSPs that

Nothing changes around single-sex spaces, single-sex exemptions or the Equality Act 2010. That will remain the same—the 2010 act is not up for review. The bill does not affect whether or not a trans person can use a single-sex service matching the gender they live in.

At no point in the Bill process has the EN/ST mentioned its earlier ambitions to get rid of the exceptions. By the time of the Stage 1 briefing, it must have known it was submitting material to the court in support of the Scottish Government’s argument that a GRC changes someone’s sex under the Equality Act. But nothing was said about that. Anyone following their briefing would be forgiven for assuming that the EN/ST does not believe that obtaining a GRC should have any effect under the Equality Act. But evidently it does.

The EN/ST and its relationship to the Scottish Government and Parliament

The EN/ST is a charity funded largely by the Scottish Government (unusually in 2020-21 it also received COVID-related funding from the National Lottery, mainly to distribute to other groups). It does not appear to publish annual reports, but its 2020-21 accounts show that it received £491,392  from the Scottish Government, accounting for 99% of its non-lottery income.  £200,000 of that was for its work under the heading of Scottish Trans Alliance. The EN/ST is not subject to FoI.

Over 2021-24 it will receive £503,000 a year from the Scottish Government. It does not have membership income (it is not a membership organisation, though its 2017 funding bid for the ST-related work suggests that it has access to a network of 3,000 trans people) and no income is shown from private donors. It receives some income from training (only £5,000 in 2020-21, but around £18,000 the year before, and £10,000 in each of two years before that).  It says Scottish Trans has ‘for over a decade… been providing training for a wide variety of public bodies, including the Scottish Government, Police Scotland, National Health Service, Employment Tribunals Scotland, and many others. We have also provided training to wider equality organisations, trade unions, and academic researchers.’

As noted above, the terms of its funding from the Scottish Government available for 2017-20 include engagement with government and the Parliament on law and policy as an important role. The lobbying register shows 145 engagements with Ministers, senior civil servants and MSPs between March 2018 and February 2022 (the latest point up to which information is available in the register for the EN/STA at the time of writing), around double the number registered by Stonewall Scotland..

The EN/ST provides the Secretariat for the Scottish Parliament’s Cross-Party Group on LGBTI+, at an estimated annual cost of £800. The CPG is on record as wishing to ‘increase activity as a pressure group within the parliament’, including on gender recognition reform. Its membership includes the Convenor of the Equalities, Human Rights and Civil Justice Committee overseeing the Bill and two of the other six members of the Committee. Since before lockdown, the Director of the EN/ST has featured prominently as the representative of LGBT+ interests in a display of key stakeholders in the foyer at the Scottish Parliament’s public entrance.

From law and policy to real life situations

Commenting on the above images on mammograms, women on Twitter variously stated:

Nowadays that sign would be meaningless. I know that I could get a man prepared to shame me as a trauma victim, for recognising his sex. I know speaking out will result in the same shaming. So I’d proceed, knowing I may be about to be shamed and scared of the consequences.

And:

I used to be assured when I saw the word female, but then that word went, now I second guess everything. And this is how women live now. Second guessing everything & reassured by nothing…I don’t think this heightened state & constant internal questioning can be good for us. A constant ‘fight or flight’ for what should be the most everyday situations.

Giving mammograms is in fact, exceptionally, a role reserved in the health service by regulation  for female radiographers, despite an attempts in 2017 to make the role (fully) mixed sex. But had the EN/ST’s 2015 lobbying been successful, it would not be.  

Women and Girls Scotland’s report on self-exclusion from 2019 contains many first-hand comments like those above:

Depending on the type of facility I would be extremely uncomfortable and would likely avoid it – I would not stay at a YHA anymore due to their policy of allowing self-identified women into single sex female dorms – as a teenager I was sexually assaulted by a man in a mixed hostel dorm and have relied on single-sex spaces since.

We think every MSP voting on this Bill should find time to read this letter from the HEAL Survivors group, which sets out why corroding certainty on what ‘single sex’ means can be devastating to women seeking help to deal with trauma after sexual abuse. It details the difficulties they faced, over a long period, when seeking reassurances whether Scottish violence against women policies – those praised by the EN/STA – could provide certainty.

Are women’s concerns misplaced?

As we were finalising this piece, this story broke:

Scottish hospitals warned over isolating transwomen

Hospital managers have been warned they could be guilty of discrimination if they put transwomen in single rooms to avoid upsetting patients in female-only wards. Guidance for Scotland’s biggest health board also says that any woman who complains about a transwoman sharing their ward should be advised that “the ward is indeed female-only and that there are no men present” …

A spokeswoman for NHS Greater Glasgow and Clyde said its guidance on gender reassignment was framed within the context of the Equality Act, the Gender Recognition Act and guidance from the Equality and Human Rights Commission. She said: “Within the paper there is clear guidance which provides multiple potential solutions to help ensure we’re able to take a person-centred approach and balance the needs of all our patients.”

The guidance states: “Often where inpatient care is planned ward managers opt to accommodate transgender patients in single-occupancy rooms where available to avoid potential difficulties. Adopting this position as a default in itself could be discriminatory. Patient placement needs to be done with the full engagement of the patient involved and on a case-by-case basis. If there is spare capacity in single rooms it may be prudent to make this offer to the complainant.”

The Sunday Times, 13 November 2022

This policy is entirely consistent with the interpretation of the law according to the EN/ST (and other lobbying organisations, most obviously Stonewall).

The most recent EHRC guidance, published in April 2022, does not however require women patients’ interests to be downgraded to the point that they should be misled about the sex of other people with whom they are sharing a sleeping space, while in a vulnerable state. But that conclusion might be drawn from reading the wording of the 2011 Code rigidly, without  any consideration for the Public Sector Equality Duty and the impact on women. The ‘case-by-case’ language is likely to come from there. The reference to the Gender Recognition Act contradicts the multiple assertions that it has nothing to do with single sex spaces. An obvious question to ask here is where the Board has acquired its understanding of the law.

What’s behind the fig leaf?

MSPs need to think hard about the practical situations at stake here.

They include spaces were women sleep, undress, perform physical functions long understood to justify separation of the sexes, go to deal with trauma due to male abuse, go to escape that abuse, prisons, hostels for homeless women…  Jobs which involve intimate access to the bodies of women in health settings, elderly women in need of intimate care, non-verbal and/or acutely immobile women and girls in need of intimate care, strip searching, counselling rape survivors…

We are talking about women’s ability in all these settings, and others, to manage their boundaries round people of the opposite sex, for reasons of dignity, privacy, safety (including the sense of safety), with certainty and clarity and without complexity, accusation or shame; with trust and without being misled.

It would be a logical endgame for the EN/STA if providers and employers had no ability, or else hardly used what ability they have, to distinguish between women as a biological sex and holders of a female GRC, and if anyone identifying as a woman could obtain a GRC. They are after all fully committed to the belief that “trans women are women”, which explains their position in 2015/16.  Whether lobbying for such an endgame should enjoy a substantial government subsidy is a question for elsewhere, as is whether the Scottish Government properly understands, or even just cares about, any of this.

The immediate question is, what are the EN/ST’s ambitions here for women, and where does the Bill fit in?

The answer to that might explain the key contradictions between the lines the EN/STA has use during the Bill process to reassure MSPs that they can disregard women’s concerns about the impact of the current Bill on single sex services, and what it says and does in other contexts. For example:

• it highlights ‘exceptions’ in the Equality Act by way of reassurance. But in 2015-16 it lobbied Westminster to repeal the exceptions (something it never mentions), also describing these as “wrong and unfair” to the Scottish Parliament. It still interprets the exceptions as applicable only in highly restricted ways , including suggesting women should have to disclose sensitive personal history to obtain single sex care.

• It claims a GRC is irrelevant under the Equality Act, but last week argued to a court that a GRC changes someone’s sex under the Act, again something it has not mentioned in briefing MSPs. In 2017 it privately argued to government that one purpose of obtaining a GRC was to ease access to single sex services and that it expected wider effects in law and policy from GRA reform.

• It has not acknowledged in briefing MSPs any parts of the Equality Act where the exceptions do not apply , such as those covering positive anti-discrimination measures, even though the current court case has been triggered by one such example.

Below are the specific questions we started with, which we hope journalists and MSPs will now ask the EN/ST.

Regarding a person who will be performing a physically intimate procedure on her, or providing any other service or sharing any space where questions of privacy, dignity or safety arise:

1. Should a woman ever be allowed certainty that such a person will be the same sex? [Relatedly, has the EN/ST abandoned its lobbying position on the Equality Act exceptions in 2015 and, if so, when was that and where is it recorded?]
2. If so, should such certainty be relatively ordinary or relatively rare?
3. How difficult should it be to achieve such certainty; for example, should it require personal negotiation?
4. Should it require a woman to share personal information, possibly revealing intimate personal history? 

These are not just questions for the EN/ST.

We need more transparency from government, other lobby groups and supporters of the Bill, including those funded by the Scottish Government as women’s organisations, the SHRC, and MSPs, about what they think about women being able to manage their boundaries round the opposite sex. 

Certainty matters, for women and in law

As the bill is pushed through Stage 2 at speed by the Scottish Government, a timetable which has the support of Scottish Labour, it’s time to remove the fig leaf provided by throwaway descriptions of the current law and ask people to be clear about what they believe women should be entitled to. There has been some reference during the Bill to people being on a journey. What journey do MSPs voting for the Bill think they are taking the rest of us on?

So, the questions above should also be asked of anyone who supports self-declaration for GRCs, especially if they also believe a GRC changes someone’s sex under the Equality Act. That list now clearly includes Scottish Ministers, Green MSPs, Pam Duncan-Glancy MSP (based on her comments in the Stage 1 debate) and any MSPs, in any party, who support the Bill without amending it to make it clear that GRCs issued by the Registrar General in Scotland will not change a person’s sex under that Act.

Failing to put a firewall between GRCs and the Equality Act, at the same time as making GRCs available to a much larger and more diverse group, will accelerate the chipping away at sex as a usable, functional boundary for services on the ground. As drafted, and if the current court case goes the Scottish Government and the EN/ST’s way, the Bill stands a good chance of achieving in practice what the EN/ST failed to achieve at Westminster in 2015: the exceptions will be become a dead letter.

In that endgame, almost no service or space badged as single sex would be that, albeit there would be a side order of linguistic fudging to disguise or deny the situation. The supposedly single-sex service would in fact be mixed-sex, or female service provider male, very possibly evidently so.  It would cement a trend that NHS Greater Glasgow and Clyde shows is already well underway.

For anyone who wants to vote for the Bill only because they believe, like the Chief Executive of LGBT Youth Scotland, ‘the bill is about a piece of paper—a birth certificate. It is not about the Equality Act’, the amendment which so far comes closest to protecting the continued possibility of actual single sex jobs, services and spaces, and meaningful positive action measures for women, is Foysol Choudhury MSP’s (no. 104 here). It is due for debate on 22 November. Something on that model is also recommend by the EHRC in its most recent briefing to MSPs. Without such an amendment , and with no judgment due till well after Stage 3 on the current court case, MSPs will be proceeding here without certainty what impact their actions will have on sex discrimination and the rights of women: the large increase in GRCs will be legislated for “in a manner that is legally blind”, in the words of Aidan O’Neill KC, Counsel for FWS last week.

The Duncan-Glancy/Scottish Government-approved amendment on the Equality Act (no. 37) is, unsurprisingly and as discussed here , by contrast a fig leaf for the disregard of women’s ability to know about, and say ‘no’ to, people of the opposite sex, at times when that really matters to them.

As Counsel for For Women Scotland said last Thursday,

“Women can expect, rightly can expect, more.”

A short summary of this blog can be downloaded here.

Notes

¹ Formerly Scottish Trans Alliance

² The EHRC Code of Practice (2011) is not a straightforward point of reference because: the legal basis for its assertions have been challenged in detail and it is now in conflict with more recent guidance from the EHRC;  the Code’s one-sidedness sits uneasily with organisations’ balancing responsibilities under the PSED; although the Chair’s foreword describes it as being an authoritative account of the law, the formal text states at para 1.5 that it is not and that that is for the courts; it is a Code issued under statute that providers must have regard to, but they are not obliged to follow it, if they can demonstrate  good reason not to. In its submission to the second Scottish Government consultation on GRA reform the Law Society of Scotland stated: “Recognising the responses of service providers to previous consultations in this area, including many operating on a volunteer or not-for-profit basis, additional clarity and support may be required. Though outside the scope of this draft Bill and this consultation, consideration could be given to amendment of the 2010 Act, for instance, by providing specificity around legitimate aims and the proportionate means of achieving these; alternatively, looking at revision to the statutory code that supports the operation of these provisions to ensure that we respect the rights of all involved around the proposed changes.”