MBM Stage 3 Briefing on the Gender Recognition Reform (Scotland) Bill

The effects of a Gender Recognition Certificate

Since embarking on reform, the Scottish Government has refused to state its view on what getting a Gender Recognition Certificate (GRC) means under the law governing single-sex spaces and anti-discrimination protections for women. Its position only became clear last week, via the ruling by Lady Haldane in For Women Scotland vs Scottish Ministers. This determined that a male with a GRC is legally female for the purposes of the Equality Act.

The Haldane ruling wholly undermines the argument that a GRC is a simple administrative process with no real-world consequences for other people. Coupled with a sharp increase in the number and diversity of GRC holders, it will make protections for women in the Equality Act (EA2010) harder to operate

For those parts of the EA2010 intended to address sex discrimination, the judgment means that all GRC-holders are always entitled to identical treatment to women. These include equal pay protections and measures to increase the participation of women in public life. The Scottish Government and other supporters of the Bill have never acknowledged these EA2010 provisions, to which the exceptions for gender reassignment do not apply.

For single sex services and jobs, where the exceptions do apply, the judgment means the holder of a GRC that certifies them as female can only be excluded based on gender reassignment, not on their sex, even though their biological sex is the reason for their exclusion. This makes using these exceptions more complex and daunting.

Providers are already under pressure not to apply the exceptions. The hostile reaction to Beira’s Place, as a female-only provider of support to sexual assault victims, shows this. A larger GRC-holding population will increase this pressure. The Equality Network and Stonewall have previously lobbied Westminster to get rid of the exceptions

The Scottish Government plans to leave providers to deal with the GRC-holding population becoming larger, more varied and, we strongly predict, more assertive in how it uses GRCs. The Scottish Government dodges the fact that it is harder in practice to use the exceptions for GRC holders, compared to non-GRC holders, by hiding behind the continuing possibility of being able to do so in theory.

The Scottish Government pays lip service to the continuing potential for single sex spaces, but does nothing to defend them in practice, appearing not to value women’s privacy, dignity and peace of mind when vulnerable, or the specific needs of women with trauma responses to males, or those from religious minorities. It expressed no concern when it was revealed earlier this month that hospital policies are creating mixed sex wards, misleadingly described as single sex (see further here). The First Minister declined to welcome the opening of Beira’s Place, even though it increases capacity in an over-subscribed service.

The impact of a larger GRC-holding population on the exceptions could be avoided if the Bill included an amendment making explicit that a GRC issued in Scotland has no effect on the definition of man and woman in the EA2010. This would overrule the Haldane judgment.

The Scottish Parliament has however, disallowed amendments that change the ‘effects’ of the Bill as inadmissible. This ties the hands of legislators and means it is not possible to put a robust firewall between the two Acts.

The inadmissibility criteria mean that any amendment that has been accepted for debate that purports to deal with the effect of a GRC on the operation of the EA2010, by definition, has to be assumed to have no effect, in the absence of formal legal advice saying otherwise.    

Section 22 privacy provisions

Section 22 of the 2004 Act sets out stringent privacy provisions, which make it a criminal offence to disclose that a person has a GRC, if the knowledge is acquired in an official capacity. In practice, this makes the exceptions harder to apply. In 2018 NHS Lothian stated that, due to s22, they were unable to guarantee that a woman healthcare worker, if requested by a patient, would be biologically female. Other s22 risks relate to identity fraud (see here)

In 2019 the Scottish Government stated that it would consider further exceptions to the s22 privacy provision, provide guidance on its use, and outline its approach on the introduction of any Bill (paras. 5.30-5.32). It has reneged on this. In giving evidence to the EHRJC Committee, the Cabinet Secretary stated: It is vital that a person’s right to privacy is protected in that way. We are not amending section 22 of the 2004 Act” (22 November: col. 26). For more detailed analysis, see here

Safeguarding  

There is almost no way to falsify a claim of self-identification. The draft Bill strips aways all robust safeguards, opening up a change of legal sex to anyone male willing to make a non-falsifiable declaration. The alternative safeguards under consideration are still very limited and do not seriously address the concerns raised by the UN Special Rapporteur on violence against women and girls.

The offence of a making a false declaration is impossible to prove, short of an admission by the applicant. An amendment accepted at Stage 2, which requires applicants to confirm that they understand making a false declaration is an offence, is toothless.

An amendment that would have prevented a person on the sex offenders register (SOR) from acquiring a GRC was rejected. The Scottish Government’s first response to this was a naïve suggestion that a person on the SOR who applies for a GRC should inform Police Scotland. Less naïve amendments coming forward at Stage 3, with Scottish Government backing, relate only to a minority of offenders with Sexual Offences/Harm Prevention Orders and Sexual Risk Orders (including interim orders). These do not appear to apply to the full SRO population (over 6,000 individuals) or to those with orders already in place, and do not safeguard against those who have avoided a criminal history. They will still allow for some known sex offenders being permitted a GRC based only on self-declaration. It is not clear if the amendments would apply to those with a criminal record elsewhere in the UK.

Only at Stage 2 was a provision added allowing an application to be rejected on the grounds it is ‘fraudulent’. The Scottish Government rejected an amendment seeking to define ‘fraudulent’. Again, as explained here, the only way of demonstrating fraud appears to be an admission by the applicant.

Amendments suggesting a counter-signatory modelled on the passport process were strongly resisted by the Bill’s supporters at Stage 2 and are being resisted again at Stage 3. For years the argument has been that GRCs should be brought into line with passports.

The Bill is now being used to drive making a change to a birth certificate and legal status easier than changing the male/female marker on a passport (see further here).

Other countries as a guide to risks

The Scottish Government and supporters of the Bill state that there is no evidence of harm in other countries. This hugely over-simplistic and incorrect claim has been used to dismiss arguments that consider why single sex spaces matter to women for reasons that go beyond simple safety. It also ignores under-reporting of sexual offending, inadequate data collection, and evidence about the nature of male pattern offending.

It is untrue that no cases have been reported of violent men obtaining access to women’s spaces using a GRC. The Kardashian case in Ireland is a well-publicised example. There are several cases, where self-identification has been introduced ahead of the law, which show the vulnerability of these systems. These include Katie Dolatowski (Scotland), Karen White (England), and the Wi Spa incident (US). The Committee was told about such cases.

The Scottish Government appears to ignore harms that do not involve contact (flashing and voyeurism). It also never acknowledges that wider harmful effects for women include a loss of dignity, privacy, and peace of mind. The impacts here, including self-exclusion, are not easily tracked. A review in Ireland ruled evidence on the impact of women as ‘out of scope’.

Under-reporting of sexual offending is a global issue. Statistical evidence has been compromised by a lack of separate data on sex and gender identity, meaning offending cannot be tracked. This includes Scotland, where offending, including rape, can be recorded based on self-declared gender identity if the accused prefers.

On male pattern offending, the only available large-scale study found the general likelihood of offending, including violent offending, was the same for males who had undergone a process of gender reassignment as it was for those who had not. The burden of proof rests on those promoting self-declaration to provide at least equally robust counter-evidence to this. They have not. Until then, MSPs should take this study as the starting point for risk-assessing policies here. The Committee ignored it. The Scottish Government has gone to extreme lengths to avoid having to engage with it.

Minimum age

The Interim Cass report states that social transition is not a neutral act and may lead to young people taking a medicalised pathway. Acquiring a GRC is a very strong form of social transition. Clinical negligence cases in relation to medical treatment are already anticipated (here and here).For further background see here.

The Scottish Government rejected amendments seeking to retain the minimum age at 18 and to pause the Bill for the final report of the Cass Review. Instead, an amendment was accepted that requires 16- and 17-year-olds applicants to confirm to the Registrar General that they have discussed the implications of obtaining a GRC with an adult who knows them personally, or whose role involves giving guidance, advice, or support to young people. The Scottish system for 16- and 17-year-olds has far fewer additional safeguards than in the countries it holds up from elsewhere, including Ireland. The amendment at Stage 2 provides no serious reassurance to MSPs.

Unresolved concerns

The Scottish Government has not secured UK Government agreement on cross-border recognition of Scottish GRCs, despite having had two years to do so since the UK government rejected self-declaration, in favour of administrative modernisation. Instead, the Bill appears to remove Scots’ current access to the UK Panel system, which of itself appears to us to leave a person born in England or Wales and now living in Scotland with no way to obtain a changed birth certificate, and to remove any means for a person in Scotland to obtain UK-wide gender recognition. MSPs should clarify if this is its effect.

The argument that the UK overseas list includes some self-declaration countries is a red herring. Only 216 people from any other country have obtained a UK GRC in over a decade. Self-declaration countries are on the list only because it has not been updated since 2011. 

Key terms in the Bill remain unclear, including ‘ordinarily resident’. The GRA 2004 defines ‘living in the acquired gender’ as ‘the gender in which the person is living.’ The Bill does not change this definition, although without the additional safeguard of a medical diagnosis, it brings its circular absurdity into much sharper focus.

Policy and parliamentary process

The policy development and parliamentary process has been strongly weighted towards views supporting reform. At no stage has the government sought to secure consensus, dismissing concerns raised in both consultations. Despite a five-year window, the government only met with women’s groups in the weeks prior to publication of the draft Bill. The Committee began hearing evidence within 12 hours of the Call for Views closing, which elicited nearly 11,000 responses. The Committee heard overwhelmingly from witnesses supporting reform. It did not hear from sexual assault survivors, despite approaches to do so.

Public opinion

Gender recognition reform based on self-declaration with no further requirements does not enjoy public support. YouGov/Times polling (6-9 December 2022) found removing medical involvement opposed by 59% of 2019 SNP voters (22% supported). The figures for other parties are Liberal Democrat 71% (vs 13%), Labour 58% (vs 22%) and Conservative 77% (vs 7%). This is consistent with multiple other polls over several years. Any polling with very different results should be carefully read to ascertain what respondents were asked and told, and especially if they were advised that a GRC has no effect at all in relation to single sex services.  

Other polling (e.g. pages 13 and 17 here) shows that the level of support for access to single sex spaces falls when it is clarified that this means for those who have not undergone surgery. This is likely to be the large majority of those obtaining a GRC based on self-declaration. There is however, strong public support for people being able to freely express their transgender identity.

Thanks to the recent court case, on 21 December as MSPs you will be faced with a clear choice: to make the legal status of being a woman under the Equality Act available to anyone aged 16 or over, based on no more than a bureaucratic process of self-declaration, undermining protections for women in that Act; or to refuse to agree that and insist on being presented instead with a Bill that balances properly the interests of different groups, and does not further erode the rights of women and girls in Scotland.

This may not be the choice you want. But after years of an unusually poor policy process, insincere consultations, clearly deliberate evasion on a key point, and a wasted opportunity to improve the law at earlier parliamentary stages, it is the only one now available.

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