Scottish Human Rights Commission
8 December 2022
Dear Mr Duddy
WOMEN’S ABILITY TO SET PERSONAL BOUNDARIES BASED ON SEX
We attach a copy of a multi-signatory letter sent on 5 December by a group of 29 individuals and organisations, including many with backgrounds in campaigning on women’s rights and delivering services for women who have experienced male violence, to the UN Special Rapporteur on violence against women, Reem Alsalem, to welcome her intervention on the Gender Recognition Reform (Scotland) Bill.
The letter submits that the international ambition of improving safety and respect for those with transgender identities should not be accomplished at the expense of women’s rights to safety, privacy, and dignity on the basis of sex, including to effective trauma-informed services. “Sex” here means what the Inner House of the Court of Session of Scotland has referred to as “biological sex”. The Court of Session identified this definition as that which should be applied in any circumstances “affecting status, or important rights, in particular the rights of others”, and cite examples which “all have in common … that they concern status or important rights.”
The letter to Ms Alsalem notes that the signatories believe an organisation’s answers to four questions determine how seriously it takes women’s rights to set personal boundaries based on sex in those situations where it matters to a woman that a person providing a service or sharing any space where questions of privacy, dignity, or safety arise will be of the same sex. These are:
- Should a woman ever be allowed certainty that a person in such circumstances will be the same sex?
- If so, should such certainty be relatively ordinary or relatively rare?
- How difficult should it be to achieve such certainty; for example, should it require personal negotiation?
- Should it require a woman to share personal information, possibly revealing intimate personal history?
We would be grateful if you could clarify the Commission’s position on each of these four questions as a matter of human rights. That is, not in terms of describing current UK domestic law, nor what the effect of the current Bill may or may not be.
Related to this, the multi-signatory letter to Ms Alsalem notes the importance of women’s psychological safety and how, in contexts where the sex of another person matters, that can be compromised if our accurate perception of a person’s sex is contradicted, or its expression suppressed. In that context, we draw to your attention that NHS Greater Glasgow and Clyde and NHS Ayrshire and Arran both advise that if a female patient objects to the presence of a trans identified male on a nominally single-sex ward, ‘it would be appropriate to re-iterate that the ward is indeed female only and that there are no men present’. We would welcome your view on that point also.
In a statement issued on 7 December the Commission claimed it had “noted examined and analysed the concerns which had been raised in relation to the risks to the rights of women and girls. We could not identify any objectively evidenced prospect of real and concrete harm resulting from the proposed changes.” We have previously analysed freedom of information responses we obtained from the commission this summer, seeking information on the analysis underlying the statements it had made at Committee. We concluded:
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.
On how far we can learn from experience elsewhere, the multi-signatory letter sent on 5 December notes:
We are aware that it is repeatedly argued that there is “no evidence” of negative effects from similar legislation in this area. We believe that an ‘absence of evidence is evidence of absence’ argument comes from adopting a hierarchy of rights in which women’s rights based on sex are demoted. It also places an impossible burden of proof on almost wholly voluntary campaigners who find themselves opposing state machinery and state-funded actors. It should be rejected.
It then makes further detailed points responding to the “no evidence” argument.
On the specific concern about the interaction of the Equality Act and GRC, we draw to your attention that the letter makes these points:
- The interaction of a Gender Recognition Certificate (GRC) with the Equality Act 2010 remains a central and unresolved concern, which is subject to current litigation in the Scottish courts. The Scottish Government is arguing a GRC should have legal effect under the Equality Act 2010 in a way that, when combined with the proposals in the Bill, will put single-sex services at greater risk.
- Neither the Scottish Government nor the co-signatories to the letter [Ms Alsalem] received have acknowledged this litigation. Outside court, the Scottish Government has refused to state its position, even to the Scottish Parliament.
- The commentary [in the letter from the six organisations] on the Equality Act 2010 overlooks that under the current state of legal confusion a GRC may, in practice, be used by individuals to persuade service providers or employers to admit them to a single sex service, space or role from which they would otherwise be excluded. Relatedly, it overlooks that fear of such challenges will influence providers in deciding whether to make use of their powers to make single sex services available. We draw your attention to this article by barrister Naomi Cunningham.
We would be grateful for your comment on the attached letter on these points.
A copy of this letter goes to the Deputy Commissioners.
Lucy Hunter Blackburn
Dr Kath Murray