Comparing consultations on gender recognition reform and the impact on the operation of the Equality Act: who asked, who listened?

The attached briefing note compares how consultations on gender recognition reform by the Scottish Government  (in 2017 and 2019) and the UK government (in 2018) dealt with the interaction between the Gender Recognition Act 2004 and the Equality Act 2010.

We find that neither Scottish consultation probed this issue in any depth, in contrast to the UK one. Although relevant material was nonetheless submitted to the Scottish Government on both occasions, this was then given cursory treatment, and there was no pro-active engagement with those raising issues. The UK consultation process involved more active engagement with those expressing concerns. 

The two governments then came to different conclusions. In 2020, the UK government decided against taking forward reform of the GRA based on self-declaration, instead dropping the fee and putting the application process online. The Scottish Government by contrast, introduced a Bill modelled on self-declaration for GRCs (with effect for devolved and reserved purposes) in 2022.

Public authorities have a statutory duty to ‘conscientiously’ consider the results of any consultations conducted (the Gunning Principles). Based on the analysis in this briefing, we do not think that the Scottish Government consultations met this requirement.

We argue the differences in the approach taken by each government to consultation on this point provide relevant context to the recent decision by the UK Government to lay an Order under Section 35 of the Scotland Act, preventing the Scottish Bill proceeding to Royal Asset in its current form, based in large part on effects related to the Equality Act.

The Scottish Government has recently argued that the UK Government ought to have used its earlier consultations to raise its concerns. If the Scottish Government treatment of concerns repeatedly raised by its own citizens in its own consultations provides any guide to how seriously the UK making the same arguments would have been taken, then it is difficult to see what difference such earlier interventions would have made. The same disagreement would presumably still have taken place, only this time potentially against a backdrop of complaint about attempted UK government interference in internal Scottish government and parliament processes, outside the framework put in place by the Scotland Act. We suggest that the tone and content of the Scottish Governments’ responses to the EHRC, making essentially the same arguments, throughout 2022, lends weight to that view.                     

Key points

• The UK Government has issued a Section 35 order under the Scotland Act 1998 preventing the Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent.
• The UK Government argue that the Bill will affect the reserved area of equalities, principally the operation of the Equality Act 2010 (EA2010), with a negative impact on women and girls.
• Scotland’s First Minister Nicola Sturgeon has dismissed these concerns and stated that if such concerns existed that they would have been raised at a much earlier stage.   
• The Scottish Government (SG) consulted on gender recognition reform in 2017 and 2019. The UK Government consulted on reform in 2018.
• In each consultation the respective Governments set out their view on the interaction between the Gender Recognition Act 2004 and the EA2010. Neither government anticipated adverse effects.
• The two governments approached the consultation very differently. Having set out its own position, the UK Government consultation then asked respondents for their views on how reform might affect the operation of the EA2010. These questions accounted for more than a third of those asked. 
• The UK Government met with women’s groups, including ones not in receipt of public funding and known to have concerns, prior to consultation, as part of a pre-consultation exercise, and during the consultation itself. It convened a roundtable, attended by groups opposed to reform, and a meeting to discuss the impacts on prisons/offender management.
• The 1st SG consultation treated the government view as definitive and did not ask about potential effects on the EA2010. It did, however, ask about the Section 22 privacy provisions in the 2004 Act, which are relevant to the operation of the EA2010.  
• The SG met with Women’s Spaces Scotland (WSS) in February 2018, at the request of WSS. The agenda listed ‘impact of reform on single-sex services and facilities’. WSS asked the SG to arrange a roundtable on reform, but this was not taken up. 
• An independent report (November 2018) on the 2017 SG consultation documented respondents’ concerns across a range of policy areas relating to the EA2010.
• The 2nd SG consultation (2019) restated that the EA2010 would not be impacted by reform and did not ask for respondents’ views on this.
• The 2019 consultation paper flagged Section 22 as needing further consideration but did not seek respondent’s views. 
• Nor did the 2019 consultation ask for respondents’ views on the main plank of reform: removing the requirements for a diagnosis of gender dysphoria.  
• On 22 September 2020 the UK Government announced it would not proceed with a self-declaration model.
• On the same day, the UK Government published an independent report on its 2018 consultation. This showed majority support for removing the requirement for medical diagnosis (64%) although the analysis also documented in detail a range of concerns, including adverse impacts on the operation of the EA2010.
• An independent report (September 2021) on the 2019 SG consultation reinforced the concerns raised in both the 2017 SG consultation and the 2018 UK consultation, relating to the interaction with the Equality Act. A week later, the First Minister described the fears of women and girls as ‘not valid’.
• In January and February 2022, the SG held a series of short, short-notice, last minute meetings with groups who had concerns about the Bill. These took place after the Scottish government was put under pressure by the media and happened in the weeks immediately ahead of publishing the Bill.
• In February 2022 a group of women’s organisations, including ourselves, asked the SG to convene a roundtable bringing together groups with different views. The SG declined to do so.
• On 2 March 2022 the SG published the current Bill. Both the Bill and the Equality Impact Assessment (in relation to sex) remained largely unchanged from the previous draft Bill, suggesting that the SG had not taken any other views into account.
• Throughout the process, the SG has treated its own view as definitive. It did not ask about areas of concern in relation to the 2010 Act; and when told about these, it did not listen.

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