20 questions on GRA reform and gender self-declaration (revisited)

question mark on chalk board

Over three years ago, in anticipation of a draft Bill on gender recogntion, we published a blog asking 20 questions on how the Scottish Government expected that a reformed GRA based on self-declaration would work in law, the evidence base for reform, and the Scottish Government position on the Equality Act 2010. Our original post is here:

At the time we wrote:

These are questions to which the answers are currently contested, answered implicitly but not explicitly in the earlier consultation, or otherwise unclear. We believe the government’s position on them ought to be made clear in or before any further consultation. The blog also includes questions about how gender self-identification currently works in relation to data recording.

The Scottish Government published its first draft Bill and consultation paper in December 2019.

In January 2020 we assessed the draft Bill and consultation paper against our original 20 questions. We concluded that the consultation paper answered five of our original questions, albeit raising more questions in each case, and partially answered two. Thirteen questions remain unanswered (of which around half related to data collection issues). Our assessment from January 2020 is here:

This blog revisits the same 20 questions to assess what answers, if any, the Scottish Government has since provided. The orginal text is shown in blue, followed first by our assessment in January 2020 (of whether they were answered in the consultation paper), and then by our current analysis. As this shows, many of the questions are still unclear or unanswered.

The Scottish Government has repeatedly avoided answering the critical question, on the legal effects of a Gender Recognition Certificate. We do however as of this week have a partial answer to this question, due only to the ruling in the legal challenge brought by For Women Scotland in relation to gender quotas on public boards. As explained below, this ruling means that the Scottish Government can no longer maintain the fiction that a GRC is simply a piece of paper, with no consequences for others.

Reflecting on what we have observed, during Ministerial meetings, court cases, the formal Bill process and more generally, we sense a hardening of the government’s position since May 2021 in relation to the need for single sex services, activities, or jobs for women (see Qs12 and 13 below). In February 2019, a briefing for Miinisters noted: “there are areas, across Ministerial portfolios, where there are potential conflicts between rights. These areas require careful consideration.” It went on:

For example, questions arise about trans women in communal accommodation such as prisons (where currently in the interests of their own safety or that of other prisoners, individual trans prisoners may sometimes be treated differently from their gender identity) and domestic abuse refuges (although domestic abuse refuges in Scotland are generally trans inclusive); guidance on the treatment of trans pupils in schools; inclusion of trans people in statistics and equality monitoring; women-only political shortlists; whether trans women can be excluded from carrying out certain types of medical examinations; and the inclusion of trans women in single sex hospital wards.

Internal SG briefing, 26 February 2019, obtained by FoI

Since then, we notice a greater lack of empathy, bordering at times on brutalism, towards any arguments from that perspective. The Scottish Government now seems to us to be, if anything, closer to having an openly hostile position towards the use of sex, meaning for the avoidance doubt biological sex, as a meaningful category in policy and law, than it did when its second consultation paper was launched three years ago. This coincides with the Scottish National Party going into coalition in summer 2021. Its coalition partner, the Scottish Green Party, is opposed to the recognition of biological sex in almost any context.

What are the legal effects of a Gender Recognition Certificate (GRC)?

Section 9(1) of the GRA says that a GRC says “if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman.” Section 22 introduces criminal penalties intended to prevent any identification of a person’s trans status or pre-transition identity, with some limited exceptions.

Q.1  Does acquiring a GRC, and therefore a different legal sex, affect a person’s legal rights under the Equality Act 2010?

January 2020: Is this answered? No.

December 2022: Finally, a week before Stage 3, we have an answer to half this question, but only as a result of court action.

Yes, a person acquires the rights of the opposite sex (and loses those of their own) in contexts where people are treated differently by sex. That includes access to anti-discrimination measures, such as the arrangement intended to ensure women make up at least half of public board members, which are now confirmed as being open to some people who have spent decades living and recognised as men (and conversely closed to some who have spent most of their lives the opposite).

But the government still has not spelt out how an organisation’s ability to exclude a person from a single sex service changes when that person acquires the qualifying sex, under the Equality Act. It appears to want people to accept that whether or not someone is a woman under the Equality Act does not affect their rights of access to services for women only, if they are also biologically male. This is despite it having now argued in court against biological sex being a relevant concept at all under the Act.

Q.2  Does acquiring a GRC affect a person’s legal right to have their sex at birth or any identifying characteristics before transition (name, other aspects of personal history) kept confidential?

January 2020: Is this answered? Yes.

December 2022: Section 22 will apply to all holders of GRCs acquired through self-declaration as to those who obtained a GRC under the existing system. Nothing in the Bill changes this section.

Gender self-declaration and the GRC-holding population

At the time of the passage of the 2004 GRA Bill, the UK Government stated it expected around 5,000 people to use the legislation. In line with this prediction, just under 5,000 people have used the legislation.

Q.3  How many GRCs does the Scottish Government expect to be issued under a system of self-declaration, compared to the current system?

January 2020: Is this answered? Yes.

December 2022: Scottish Government continue to predict a tenfold increase, although the basis for this is speculative at best.

Q.4  Could gender self-identification expand the GRC holding population to include the following groups: people who would not qualify for a medical diagnosis of dysphoria; people who have sought no medical advice or diagnosis of any sort; people who have done less to socially transition than is currently required?

January 2020: Is this answered? Not properly.

December 2022: Discussion of the Bill has put beyond doubt that the answer to all of these is yes.

Evidence base on international best practice

Q.5  Has the Scottish Government undertaken any analysis of the law, and its application in settings such as hospitals, schools and prisons in Ireland and other jurisdictions it considers to represent ‘international best practice’?

January 2020: Is this answered? No.

December 2022: Still no.

Q.6  Does the GRC equivalent in Ireland, Denmark and any other countries considered to represent ‘international best practice’ confer the same legal rights as a GRC in the UK?

January 2020: Is this answered? No.

December 2022: We still don’t know.

Equality Act 2010

Q.7  Does the Scottish Government support the single sex exceptions under the Equality Act 2010?

January 2020: Is this answered? Yes, but it is not clear how exceptional it thinks their use should be.

December 2022: During the Bill process, as reactivated in the summer of 2021, the Scottish Government has acknowledged the existence of the exceptions, but has been noticeably reluctant to go further than that. The Scottish Government appears unwilling to accept any responsibility for whether the exceptions are used, delegating this instead to individual public and private bodies.

Q.8  Does the Scottish Government see any ongoing need for women-only spaces and services based on biological sex?

January 2020: Is this answered? No.

December 2022: See Q7. It remains very unclear that it does. We hope the response to this recent letter to the Cabinet Secretary will clarify the Scottish Government position.

Q.9  Does the Scottish Government believe that women should ever be free to organise around their shared experience of being born with a female body and all the physical, economic and social experiences that creates, without including people who do not share that experience?

January 2020: Is this answered? No.

December 2022: See Q7. It remains very unclear that it does.

Q.10  Does the Scottish Government believe that the Equality Act 2010 currently permits single-sex policies that exclude everyone who has not used a GRC to change their legal sex to that covered by the policy?

January 2020: Is this answered? No.

December 2022: This is a question about whether services can apply a blanket exclusion of everyone who is male biologically and in law, however they identify. It remains unclear whether the Scottish Government thinks blanket policies are permitted.

Q.11  Does the Scottish Government believe that the Equality Act 2010 currently permits single-sex policies that exclude even those who hold a GRC for the sex covered by the policy?

January 2020: Is this answered? Yes, but only partially: whether as individuals or a group is not clear.

December 2022: See Q11.

Q.12  Does the Scottish Government attach any weight to the situation of women who experience a loss of privacy and dignity and a reduction in how safe they feel, if required to share certain spaces with or receive certain services from a person they can correctly identify as male by birth?

January 2020: Is this answered? No, because its statements are contradictory.

December 2022: The Cabinet Secretary did not provide reassurances on this point in meetings with women’s groups in January 2022. As noted above, the Scottish Government has persistently shown no interest in providing any direction or lead to local providers about this. In a recent piece on the lack of clarity in NHS boards’ policies on single sex wards, the Scottish Government line provided to the media noticeably lacked any reassurance that it was concerned about developments here and would be taking any steps to address them.

Extraordinarily, during the Stage 2 hearings on the Bill, over several hours of proceedings, including the discussion of multiple amendments concerned with impacts on women and on the Equality Act, the Cabinet Secretary barely used the word ‘woman’ at all. This exchange, on the second day of Stage 2, stood out:

Rachael Hamilton MSP: Does the Scottish Government think that women’s rights to manage their boundaries around the opposite sex matter?…

Shona Robison MSP: ….On the second question, which was about whether I think that exemptions under the 2010 act matter, of course they do. That is why I have said on numerous occasions that those exceptions are important, should remain and are not affected by the bill.

Official report, 22 November 2022 (emphasis added)

The Cabinet Secretary did acknowledge the importance of single sex spaces during the Stage 1 debate. But outside fairness in sport, these were characterised narrowly as being about safety only, and, in contradiction to the 2019 briefing above, the acknowledgement dismissed any potential for a conflict of rights. Even while the Scottish Government was arguing in court that a GRC should change if someone is a woman or a man under the Equality Act, the Cabinet Secretary implied GRCs had no effect on access to single sex services, side-stepping that the issue is how a GRC may strengthen a person’s ablity to challenge use of the exceptions.

I know that, where people have concerns about the reforms, they generally centre on the potential impact on women and girls with regard to their ability to safely and confidently access single-sex services and spaces, to be accommodated safely in prisons and to participate fairly in sport. I am sympathetic to those concerns because I know from my own experience, and from years of working to improve women’s rights, that women and girls still face inequality and an increased risk of harm in Scotland today….Helping one group to better access their rights does not mean diluting or diminishing the rights of another group….We have set out why the bill will not change the provision of single-sex services or the arrangements with regard to prisons or sport, because none of those is dependent on possession of a GRC.

Shona Robison MSP, Official report, 27 October 2022: col. 70

While the Scottish Government’s approach retains some contradiction, from observing what Ministers have said, and, what they have avoided saying over the past three years, especially since the summer of 2021, we conclude that the Scottish Government does not attach weight to women experiencing a loss of privacy or dignity or a reduction in how safe they feel as a result of policies in this area, and that this now needs to be recognised as the context for its policy-making here.

Q.13  What is the Scottish Government view of the earlier requests by Stonewall and the Scottish Trans Alliance to the Westminster parliament to have the single-exceptions in the Equality Act removed?

January 2020: Is this answered? Yes.

December 2022: In the consultation paper, the exceptions were described as ‘very important’. Notwithstanding the comments made by the Cabinet Secretary at Stage 2, the Scottish Government’s line has appeared weaker since 2021, and more often a technical acknowledgment of the exceptions’ existence. We are less sure than we were three years ago that, if given the opportunity to legislate here, the Scottish Government would retain this provision.

Gender self-identification in practice: data recording

The Cabinet Secretary for Social Security and Older People has stated that the Scottish Government recognises sex and gender are separate concepts.

Q.14  In relation to the 2021 census, can the Scottish Government explain how can we collect reliable data on either sex or gender identity if both are conflated into the same question?

January 2020: Is this question answered? No.

December 2022: No. It had to assert that the effect would be too small to matter. It is not possible to test this assertion using the data collected in Scotland’s census.

In response to a FOI request that asked whether National Records of Scotland had ‘indicated what percentage of respondents answered the sex question as recording their sex at birth, and what percentage answered the sex question as recording their gender identity?’, the Office for Statistics Regulation (OSR) stated: ‘based on the census questions asked, we don’t think respondent intention would be possible to be analysed.’

Q.15  What analysis has the Scottish Government undertaken to establish the potential impact of changing the sex question in the census to one that is explicitly based on self-identification on data quality?

January 2020: Is this question answered? No.

December 2022: It did none, Freedom of Information requests have established.

Q.16  What analysis has the Scottish Government undertaken to assess the impact of the decision to remove sex recorded at birth from NHS records, as recorded in the CHI system, and to record self-identity, on the delivery of sex-specific and single-sex services ?

January 2020: Is this question answered? No.

December 2022: As far as we know, it has done none.

Q.17  In relation to criminal justice data, what analysis has the Scottish Government undertaken to quantify the potential effects of self-identification principles on the quality of data on those crimes disproportionately committed by males, such as violent and sexual offending?

January 2020: Is this question answered? No

December 2022: As far as we know, it has done none.

Q.18  Criminal proceedings in Scotland data show that only three females were convicted of sexual assault in 2017/18, compared to 299 males. Given these low numbers, does the Scottish Government acknowledge that a small percentage of male people being recorded instead as female would skew this data?

January 2020: Is this question answered? No.

December 2022: It never has.

Q.19  Has the Scottish Government undertaken any analysis of the potential impact of recording based on gender identity in the monitoring of inequalities in male-dominated industries, for example the tech sector?

January 2020: Is this question answered? No.

Decmeber 2022: As far as we know, it has done none.

Q.20  Does the Scottish Government support the recommendations in Caroline Criado-Perez’s book ‘Invisible Women’ that we must meticulously collect sex-disaggregated data to tackle sex-based discrimination?

January 2020: Is this question answered? No.

December 2022: The Chief Statistician’s guidance on collecting data on sex and gender identity took a restrictive view on when sex should be collected, so we assume not. This states:

In a small number of instances, it may be necessary and proportionateto require a person to answer a question on the their biological sex but this would be on an individual basis for a very specific purpose and it would be up to public bodies who need this data to develop the best approach to do this. The most likely scenarios where data on biological sex is required would be on a case-by-case basis in a medical context; in a criminal context where a serious sexual offence is being investigated.

Scottish Government, 2021: 11

More generally, the guidance defines ‘sex’ as having biological, legal, and self-defined aspects, with the latter referring to ‘a person’s innate senseof whether they are female or male’ (Scottish Government, 2021: 7).