‘There’s no evidence’: a titanic error

This blog considers a statement made by the Director of Stonewall Scotland on 28 November in which he suggested questions for MSPs considering the current Gender Recognition Reform Bill. He makes an argument that is being used more widely to urge MSPs to continue ignoring concerns about the Bill’s implications for women. It was used by Shona Robison MSP, Cabinet Secretary for Social Justice, Housing and Local Government, in an interview on The Nine on BBC Scotland on 29 November, in response to concerns now expressed by the UN special rapporteur on violence against women and girls.

The statement is available here: we consider it below, sentence by sentence. In summary, we argue MSPs should not risk assess legislation on the assertion of “no evidence” from other countries. They need to think more searchingly than that, and also to ask some questions of Stonewall.

’30+ countries around the world have moved to a demedicalised process of legal gender recognition.’

Note “demedicalised” here. The list may include places that have retained other checks on applicants, rejected in Scotland for compromising the “self-declaration” principle. The UN special rapporteur on violence against women and girls makes clear she supports “demedicalisation”; but has specific concerns about the lack of other safeguards in the Scottish model.

Also, it is unclear whether  “legal gender recognition” in all 30+ countries involves the redefinition of sex for the purposes of laws governing single sex spaces and anti-discrimination (in the UK this means mainly the Equality Act 2010).  

This is fundamental for comparisons. Comparative work by the Scottish Government has looked only at application processes in other countries, not legal effects. The interaction of a GRC with the Equality Act remains a central concern in the UK.

‘None of the issues that opponents to GRA reform in Scotland have raised have materialised in those countries.’

No-one is in a position to say this.

It is untrue that no cases have been reported of violent men obtaining access to women’s spaces using a GRC: we are surprised the Kardashian case in Ireland is not known to Stonewall Scotland.

Cases occurring where policies have allowed self-declaration in practice ahead of legal change are also relevant to understanding the vulnerablities of these systems. Those known include: Katie Dolatowski (Scotland), Karen White (England) and the Wi Spa incident in the US (which was subject to a major effort to discredit the woman reporting).

Furthermore, as we have argued:

A large proportion of sexual offending is non-contact: most relevantly here, flashing and voyeurism. When male people are not allowed into women’s spaces, it is relatively straightforward to identify a male person either undressed or observing women, or both, in such a space as likely to be motivated by intention to commit a sexual offence. Once male people are normalised in these spaces, it becomes much more difficult to do so. An increase in this form of offending could easily go unreported; reporting concerns about the presence of males in women-only spaces can carry a high risk of social or formal penalties…

[Further] The under-reporting of sexual offending is a global issue. Only a minority of cases are likely to be reported, and of those that are, some may not be for years. In some situations, such as intimate medical and care settings,  we know that women can take a long time to process that contact they have experienced was abusive.  Here, fear of being accused of transphobia can be expected to add to the factors deterring women from raising a complaint. 

In Norway at least two women have been pursued formally for hate crimes after objecting the presence of a male in a changing room. Robberstad and Halvorsen (2022) describe the interaction of laws on self-declaration and hate crime as an ‘unresolved legal issue’ in Norway.

Statistical evidence has been compromised in countries adopting self-declaration by replacing sex with gender identity in datasets and/or not tracking relevant cases, meaning it is no help. As we have previously noted,  immediately after the law was changed:  

…Denmark saw a sharp rise in recorded rapes and sexual assaults. But without an appropriately detailed examination of the type of cases, it is impossible to know whether any of this increase might have been related to the introduction of self-declaration rather than, say, changes in how sexual offending was dealt with in the criminal justice system. We have not as yet found any evidence that these figures have prompted such an investigation.

Critically, “the issues that opponents to GRA reform in Scotland have raised” are about far more than known incidents of violent or sexual assault in women’s spaces. The concern put repeatedly to those in power runs much wider. Again, as we have previously said:

There is [also] a loss of confidence that they will not meet anyone clearly male in a women-only space and/or discomfort at doing so. For some women, this risks leading to self-exclusion for reasons of dignity, privacy, or safety, in some cases for particular personal reasons, including religious requirements. Self-exclusion means things like: avoiding seeking help from VAWG services, ceasing to attend swimming pools and gyms, discharging early from hospital wards, dropping out of sporting activities, avoiding using loos while out, avoiding travelling far from home, taking clothes home to try or buying online, leaving groups doing any activity on women-only terms.

Many of these effects are hard to track. But no country changing its laws here has even tried to. In Ireland a review of the legislation after three years ruled evidence submitted to it of impacts on women ‘out of scope’.

‘Why would Scotland be different? Why would it be such an outlier?’

See above: our proposed legal framework may have fewer other checks, the rights granted may be different, and any negative effects elsewhere have been unmonitored and therefore will be going unreported. Absence of evidence shows nothing conclusive.

‘Those are the questions that I hope MSPs ask those who oppose this reform along with ‘where is the evidence?’

Stonewall has previously lobbied for the repeal of the single-sex exceptions in the Equality Act; that is, the same part of the Act the government and lobbyists are now relying on to argue (incorrectly) that the effect of a GRC under that Act is not an issue.

Questions we hope MSPs will ask include:

1. Does Stonewall still support repealing the exemptions in the Equality Act which allows providers lawfully to provide services or jobs open only to one sex?
2. Does it believe a woman should ever be allowed certainty that a person providing or sharing a service will be the same sex?
3. If so, should such certainty be relatively ordinary or relatively rare?
4. How difficult should it be to achieve such certainty; for example, should it require personal negotiation?
5. Should it require a woman to share personal information, possibly revealing intimate personal history? 
6. Why does it take such a narrow view of harm to women when they have made clear the potential negative effects are much wider?

‘Many countries have operated similar systems for many years with no evidence of anyone’s rights being negatively impacted.’

See above.

‘Opponents to GRA reform in Scotland have had 6 years to bring concrete, real, tangible evidence and examples of how this reform will be the awful thing they say it will be.’

Despite all the obstacles here, our submissions to the Scottish Government and to the Committee included references to the examples above and more. See here:

Others have done the same.

We also drew attention to unique population-level longitudinal quantitative research from Sweden. Activists and the Scottish Government have gone to enormous lengths, successfully, to come up with ways to misread and discount this research, far more than they put in to considering its implications for policy and law-making. The research concluded:

‘In this study, male-to-female individuals had a higher risk for criminal convictions compared to female controls but not compared to male controls. This suggests that the sex reassignment procedure neither increased nor decreased the risk for criminal offending in male-to-females.’

Dhjene et al. 2011: 6

Over the last six years, the key organisations in Scotland lobbying for the Bill have had routine access to government, millions of pounds in public funding, held hundreds of meetings with MSPs, done nothing to encourage government to engage thoughtfully with critics, and remain engaged in creating an atmosphere where their critics, working on a shoestring funding if any, are delegitimised to MSPs.

‘They’ve got 30 countries to draw from.’

See above. Also, as the Faculty of Advocates has previously observed, self-declaration systems are still relatively new: there has only been limited time for any wider effects to show.

‘Yet they have failed to bring evidence and facts to the table.’

Clearly untrue: see above. We have also however brought to the table an explanation of why MSPs should reject ‘absence of evidence is evidence of absence’ arguments.

We would also draw MSPs attention to the evidence, data and analysis not considered or dismissed by the Scottish Government. See here:

Conclusion

In a recent interview, the United Nations special rapporteur on violence against women and girls, stated:

“I’ve been receiving many messages from women in many countries in Europe and beyond thanking me for raising these issues and expressing concerns about similar planned legislations in their countries. Many [say] their safeguarding concerns have not been taken into consideration. The way in which the governments of Scotland and the UK bring this matter to a conclusion has implications that go beyond Scotland and the UK.”

Reem Aslalem, United Nations special rapporteur on violence against women and girls, The Times, 28 November 2022

Reported cases of men caught committing an assault after using a GRC to gain access to women represent the tip of the iceberg here. The larger risks that come from granting all the effects of a GRC under UK law based only on self-declaration lie below the water. Women in Scotland deserve better than policy made on the basis that voluntary campaigners have not produced a thick enough file of overseas newspaper cuttings for MSPs. We urge politicians to avoid the titanic error of risk assessment that supporters of the Bill are now inviting them to make.

End note

Prior to giving evidence in May, Lucy Hunter Blackburn wrote to the Committee, noting:

First, there has been a serious misrepresentation of the position of those with concerns about potential impacts on women and girls. It was put to the Committee on 17 May by Colin MacFarlane that a key argument by those opposed to moving GRCs onto self-declaration is that “trans people, and particularly trans women, are a threat.” Other witnesses have suggested similar.

This is not my position, I know it is not the position of others appearing with me, and I have not seen this claim made by any group or individual falling within what would be generally recognised as the mainstream of public discourse. I am confident that it is not the view of any group who has met the Scottish Government to argue for more care to be taken over impacts on women.

The only time I have seen this evidently harmful idea introduced into mainstream public debate is in fact by organisations and individuals who describe themselves as advocating for trans rights, as a view they ascribe to thiers.

The issue for us is not whether or not a person is trans, but what their sex is. In the context of women’s single sex services and spaces, the issue therefore is simply whether or not someone is male; that is, in the words of a recent judgment of the Inner House of the Court of Session and the EHRC’s recent guidance on single sex services and spaces, whether someone is biologically male.

The harmful mischaracterisation of concerns about sex, and specifically maleness, as being concerns about trans status has contributed substantially to the abuse of women seeking to have a voice in this discussion and to the atmosphere of tension and mistrust here. We would like it to stop here.

Letter to Convener from Lucy Hunter Blackburn, MBM, 25 May 2022

In July we highlighted a further issue in the evidence given to them (see here):

Polling

3.1. On 17 May, Colin McFarlane of Stonewall Scotland gave the Committee an inaccurate account of recent BBC polling. He said:

“It is also important to point out that the majority of the public support trans equality and the proposed changes. The latest poll, which was published by BBC Scotland in February this year, showed that 57 per cent of people overall supported simplifying the process of obtaining a gender recognition certificate, with women being 63 per cent in favour.” (Emphasis added).

3.2. The full sentence from the BBC report was:

‘The poll indicated a majority of people (57%) would support making the process to acquire a gender recognition certificate easier but that support dropped when asked specific proposals.’ (Emphasis added).

3.3. Respondents were evenly split for and against removing the diagnosis (40 % vs 38%). This is a closer result than obtained in most polling, which tends to show clearly stronger support for retaining the diagnosis or some other form of medical oversight. Questions which focus on removing the diagnosis appear to obtain higher support
than ones asking more generally about the removal of all medical oversight: it appears people may distinguish between these, and be more concerned about losing any medical involvement than about specifically retaining the diagnosis. As the BBC put it, their polling ‘suggests a general sympathy towards trans people accompanied
by uncertainty and hesitation around the details of the changes.’

3.4. The same BBC poll also asked about reducing the time someone had to have been living in their acquired gender from two years for three months, with a further three-month ‘reflection period.’ More people opposed this than supported it. It asked also about reducing the minimum age a person can apply for legal gender recognition
from 18 to 16: a majority of respondents opposed this.

MBM Gender recognition reform (Scotland) Bill: Stage 1 supplementary note, 12 July 2022