MBM submission to the Equalities, Human Rights and Civil Justice Committee inquiry into the operation of the Public Sector Equality Duty (PSED) in Scotland
Introduction
On 7 February 2025 the Equalities, Human Rights and Civil Justice (EHRCJ) Committee issued a three-week Call for Views on Scottish Government proposals to amend the Scottish-specific duties for public authorities, under the Public Sector Equality Duty. This post explains the background to the call and sets out our submission to the Committee.
Public Sector Equality Duty
The PSED is a legal requirement for public authorities in Scotland. The aims of the duty are to:
- Eliminate unlawful behaviour by ending discrimination, harassment, and victimisation
- Advance equality of opportunity between people who have a protected characteristic and those who do not
- Foster good relations between people who have a protected characteristic and those who do not
The PSED is largely reserved to the UK Government, including the scope of the general PSED as set out in section 149 of the Equality Act 2010, and the role of the Equality and Human Rights Commission (EHRC) as the regulator responsible for enforcing the 2010 Act.
Scottish Ministers have placed additional specific duties (SSD) on Scottish public authorities, which are more prescriptive compared to England and Wales (see here). These include a duty to assess the equality impact of proposed and revised policies and practices, and to publish the assessment (Regulation 5). For further details, see here. The Scottish-specific duties have been in force since 2012.
Scottish Government review
In 2018, the Scottish Government began to review the operation of the Scottish-specific duties. Following a delay due to the pandemic, in 2021 the government issued a pre-consultation call for views to selected stakeholders (Engender, 2024: 4).
In December 2021 the government launched a public consultation. This covered seven proposals aimed at improving the SSD regime, and explored other areas, including ‘intersectional and disaggregated data analysis’ and ‘intersectional gender budget analysis’. The public consultation closed in April 2022, at which juncture a group of stakeholders, including Engender, Close the Gap, Equality Network, and LGBT Youth Scotland published a joint statement that raised concerns about the ‘light touch’ nature of the proposals. In November 2022 the Scottish Government published an independent analysis of the consultation responses (published responses can be accessed here).
In December 2023 Emma Roddick MSP, the then Minister for Equalities, Migration and Refugees wrote to stakeholders to provide an update on the work. This scaled back the original proposals. Under a ‘phased approach’, the Scottish Government currently intends to take forward proposals to extend the gender pay gap reporting requirement to ethnicity and disability and to place a new duty on ‘inclusive communication’. Other proposals are described as ‘longer term’.
The Scottish Government also intends to repeal Section 6a of the SSD, which requires Scottish Ministers to gather information on the protected characteristics of the members, or board of management, of some public authorities. As explained by Ms Roddick in her letter, ‘Officials have taken steps over many years to seek to set up a workable process to comply with this regulation, however it has not yet been achieved due to barriers and challenges around how the data collection requirement of the regulation is framed’. We are not clear what the precise difficulty is here. In June 2024, Engender published a ‘call for action’, calling for the Scottish Government to revise its proposals and expand the duties placed on public bodies.
Equalities, Human Rights and Civil Justice Call for Views
The Equalities, Human Rights and Civil Justice (EHRCJ) Committee Call for Views asks five questions about the PSED, covering the current operation of PSED, and the PSED Scottish specific duty.
- To what extent do you think that listed public authorities understand the terms and the aims of the PSED in Scotland?
- Is the PSED in Scotland delivering on its aims to improve outcomes for people with protected characteristics?
- Do you think the Scottish Government’s proposed reforms will assist listed authorities in embedding an equalities focus and in turn improve outcomes for people with protected characteristics?
- What are your views on the Scottish Government’s revised approach to assisting listed public authorities to embed inclusive communication?
- How effective do you think the Equality and Human Rights Commission is at regulating public authorities’ performance against the PSED?
Our submission
Our submission to the Committee focuses on the current operation of the PSED. We show how Scottish public authorities are failing to meet their existing obligations in relation to protections for women and girls. We think that the Scottish Government needs to address these serious shortcomings, ahead of any proposed reforms.
We also believe that the EHRC needs to take a more active role in holding public bodies to account, and that it should pay urgent attention to Scottish Prison Service policy published in December 2023. We have also shared our submission with the EHRC Chief Executive, copied to the Scottish Human Rights Commission Chair and Executive.
MBM submission to the Equalities, Human Rights and Civil Justice Committee inquiry into the operation of the Public Sector Equality Duty (PSED) in Scotland
Introduction
This submission addresses the existing operation of the Public Sector Equality Duty (questions one, two and five).
To fulfil the PSED, public authorities must end discrimination, harassment, and victimisation, advance equality of opportunity, and foster good relations between people who have a protected characteristic and those who do not.
This submission shows that public authorities are not meeting their existing duties under the PSED and so are failing to protect women and girls on the basis of sex.
Instead of fostering good relations between different characteristics and seeking to balance different interests, public authorities have taken advice from activist organisations that narrowly advocate for gender self-identification. This has seen the introduction of policies and practices that create conflict between protected characteristics and leaves organisations vulnerable to legal challenge. These dynamics are currently playing out in the case of Peggie v NHS Fife and Dr Upton.
To demonstrate this, we review the following policies:
- Police Scotland ‘Transitioning at Work’ (2019)
- Scottish Government ‘Trans and Non-Binary Equality and Inclusion Policy’ (2023)
- Scottish Prison Service ‘Policy for the Management of Transgender People in Custody’ (2023)
We also consider the recent intervention by the Equality and Human Rights Commission (EHRC) prompted by the case of Peggie v NHS Fife and Dr Upton.
The analysis is intended to illustrate the serious and ongoing failures by major public bodies to meet their existing legal obligations. Similar policies can be found across the public sector. We would highlight schools in particular as a further area of concern.
Failure to get the law right here carries a cost to the public purse. It is likely that more cases will be brought against Scottish public bodies. In England, eight female nurses in England are suing their employer for allowing trans-identified men to use the women’s changing rooms at their place of work. We believe more cases are likely, in the absence of better political and managerial leadership across the public sector.
The Scottish Government needs to address these major failings urgently, and ahead of expending any additional resources on reforming the PSED Scottish specific duties. It also needs to put its own house in order and remedy the shortcomings in its own policies, as detailed in the example below.
Equality and Human Rights Commission
The EHRC needs to take a much more active role in holding public bodies to account.
In February 2025 the EHRC wrote to the NHS Fife Chief Executive in relation to the ongoing case of Peggie vs NHS Fife and Dr Upton. The regulator reminded the Board of its duties under the Equality Act 2010, the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, and the Workplace (Health, Safety and Welfare) Regulations 1992, with the implication that obligations under these had not been met.
Scottish Prison Service
It is particularly surprising that the EHRC did not intervene in relation to the revised Scottish Prison Service (SPS) Policy for the Management of Transgender People in Custody (2023), which is reviewed in example three.
It is hard to overstate the shortcomings of the SPS policy, which disapplied safeguards designed to protect women for a small group of men, based on nothing more than a non-falsifiable identity claim. That the SPS could claim this ‘advances equality and human rights as well as fosters good relations’ reflects an organisation that does not understand its own policy or equality law.
We think the Commission should intervene here, as a matter of urgency.
Why are public bodies getting it wrong
In the examples below, major public bodies introduced policies based on gender self-identification without any statutory basis, opening themselves to the risk of legal challenge. This happened, in part, because of a ‘training and lobbying environment that contains active disinformation’ (Foran, 2024).
Instead of seeking formal legal advice, public bodies have relied on staff organisations or lobbyists without relevant legal expertise, and/or internal EDI staff. These groups have promoted the unregulated introduction of gender self-identification as a basis for policy across the public sector, without due regard for relevant legislation.
For example, Stonewall advises employers to ‘provide inclusive facilities’, and allow access to male and female toilets, aligned with a person’s ‘gender’.
Guidance published by Scottish Trans/Stonewall states that objecting to ‘sharing toilet facilities with the trans person’ may constitute harassment (2012: 20). Instead of seeking to balance the interests and needs of different affected groups, it recommends employers provide ‘unequivocal support for a trans employee’s right to use the toilet facilities of the gender in which they are working’ (page 21).
Similar guidance is provided in the LGBT Health and Well-being/NHS Lothian ‘Transgender Workplace Support Guide’. This approvingly quotes a member of HR staff as saying, “I had a conversation about this with a senior and we just decided that the person would use the bathroom that was appropriate to their sex and that was it” (it is clear from reading the guidance as a whole, that in this sentence sex is intended, confusingly, to be read to mean gender identity). The absence of a risk or impact assessment indicated here is in breach of the Scottish-specific duties (Regulation 5).
At the same time, political parties have given their support to gender self-identification principles, creating an environment for policy-making which ignores the law. In the period before 2022, both Police Scotland and the National Records of Scotland (in relation to the 2022 Census) justified their approach in terms of future-proofing in the expectation of changes to the Gender Recognition Act.
Example 1. Police Scotland ‘Transitioning at Work’ policy
Police Scotland published its revised Transitioning at Work (TaW) policy in September 2019. The policy is currently under review by Police Scotland although it is available on its website at the time of writing.
The revised policy states in terms that Police Scotland will ‘go beyond the requirements of the Equality Act’. It covers ‘cross-dressing people, androgynous or non-binary people and others’.
On this basis, it provides access to toilet and changing facilities, turning single-sex facilities into de-facto mixed-sex facilities (for detailed analysis see here).
Equality and Human Rights Impact Assessment
Police Scotland undertook an Equality and Human Rights Impact Assessment (EqHRIA) on the TaW policy. This does not appear to be published.
The EqHRIA notes several concerns raised by an internal Equality and Diversity (E&D) manager. These related to the inclusion of cross-dressers, ‘considerable’ gaps in the evidence base, and potential adverse impacts in relation to sex. These are also included in the main body of the EqHRIA:
‘it would appear that a SOP that grants cross-dressing males access to women-only spaces or intimate search duties has the potential to have an adverse impact on women, in light of the critical feedback received by Scottish Government in response to its public consultation on reforming the Gender Recognition Act 2004…
The inclusion of cross-dressing people… invites PS/SPA line managers to treat as female for deployment purposes individuals who may not be appropriate to carry out such duties.’ (page 10).
Reflecting this, the impact on the protected characteristic of ‘sex’ and ‘religion and belief’ is classed as ‘low’ for positive effects, and ‘high’ for negative effects.
Despite this, Police Scotland took no steps to address the identified risks. Neither sex nor religion and belief are listed in the Mitigation Action Plan (page 15).
Workplace (Health, Safety, and Welfare) Regulations 1992
Neither the TaW policy nor the EqHRIA refer to the Workplace (Health, Safety, and Welfare) Regulations 1992. Under Regulations 20, 21, and 24, public authorities are required to provide suitable provide sanitary, washing, and changing rooms. Facilities for men and women must be provided separately if the facilities are used by more and one person at a time. There are no exceptions and there is no scope for a case-by-case assessment, putting the Police Scotland policy in breach of the Regulations.
Equality Act 2010
Failure meet the HSE Regulations, as well as a breach in its own right, can give rise to the detriments on the basis of sex and religion and belief under the Equality Act 2010.
If women are not confident that they have privacy from men in situations where they are vulnerable (getting changed, using toilet facilities), there is a risk of indirect discrimination (where a policy or way of working puts a protected group at a disadvantage). Even if curtains or cubicles are provided, female staff are likely to feel uncomfortable or vulnerable with men using the same facilities and spaces. This also potentially engages Article 3 rights under the ECHR, as enshrined in the Human Rights Act (on degrading treatment).
Single-sex spaces are needed by some observant religious groups. For example, Muslim women who wear head coverings may need to adjust these, which cannot be done in front of males.
The EqHRIA acknowledged concerns about privacy and safety, but as noted above, Police Scotland took no steps to mitigate these. As the policy stands, it is liable to a challenge of indirect discrimination on the basis of sex and/or religion and belief.
Failure to act on warnings
Police Scotland spends over £500,000 per year on Equality, Diversity and Inclusion staff. It has, nonetheless, left itself open to legal challenge. As noted above, Police Scotland did not act on internal warnings. Nor has it responded to external feedback. In 2019 we advised Police Scotland that the policy was vulnerable to legal challenge.
In 2021 we raised concerns about the policy with Scottish Police Authority. The SPA Chair told us that he was not aware of any concerns about the policy; seemingly unaware of the force’s legal obligations, or the obvious point that officers/staff may be reluctant to raise complaints in such a sensitive area. This is particularly true in an organisation such as Police Scotland that actively encourages officers and staff to ‘evangelise your allyship’.
Example 2. Scottish Government Trans and Non Binary Equality and Inclusion Policy (2023)
The Scottish Government Trans and Non Binary Equality and Inclusion Policy is also wide-ranging in scope and extends further than the protected characteristics of gender reassignment, to include ‘non binary, genderfluid or genderqueer colleagues’.
Similar to Police Scotland, the policy creates de-facto mixed-sex facilities, allowing trans-identified staff to access opposite-sex facilities in Scottish Government buildings, with the same potential impacts on women as noted above.
‘Trans staff should choose to use the facilities they feel most comfortable with, including using accessible toilets if they prefer.’
A template letter, intended for transitioning staff to send to their colleagues, includes a caution that, in some circumstances (for example, in the context of a workplace complaint) would constitute compelled speech.
‘I appreciate that up until this point you have known me differently and so there are bound to be some mistakes made as you adjust your language to match my gender. What is important is that you correct yourself when this happens and move on, and correct others where they have used the wrong pronouns/name.’
Equality Impact Assessment
The Equality Impact Assessment (EQIA) acknowledges that the characteristics of disability, age, sex and religion/belief may be particularly affected by the policy and guidance. It also recognises that ‘gender critical beliefs are protected philosophical beliefs under the Equality Act 2010’, and cites evidence of tension between staff holding different views on sex and gender identity:
‘Our recent experience of moderating comments on Saltire (intranet) articles has shown increasing tension between holding a belief and manifesting that belief in the workplace. There is disagreement about the definition and meaning of some terms (‘sex’, ‘gender’, ‘gender identity’) and their neutrality.
The assessment does not attempt to balance these. It continues:
There is evidence that it would be beneficial to increase understanding about the use of pronouns in email signatures (entirely voluntary in SG). All this has caused distress to members of staff networks including the LGBTI+ network, and has affected their sense of safety at work.
The EQIA does not recognise any adverse impacts in relation to sex. It states the policy has a positive impact in terms of advancing equality of opportunity between men and women (due to gender-neutral clothing and language initiatives), and in relation to promoting good relations between men and women. It documents trivial ‘mitigating’ actions, intended to address any objections to the addition of adding ‘cisgender’ to the policy glossary.
It is acknowledged that this term is not accepted by some groups and is considered to have a negative impact on the protected characteristic sex and/or philosophical belief. In recognition of this, the definition includes the statement “A person’s self-description should be respected above any guidance in this document” which is considered to mitigate any negative impact.
Workplace Regulations
The policy makes no reference to the Workplace Regulations, which are breached by the policy. Despite this, on 25 February 2025, Cabinet Secretary Shirley-Ann Somerville told the Scottish Parliament believes that all public bodies should fulfil these obligations.
Equality Act 2010
Similar concerns apply here as in the example above.
Example 3: Scottish Prison Service Policy for the Management of Transgender People in Custody
The SPS published its revised policy for transgender prisoners in December 2023. The revised policy took five years to develop and came into effect in February 2024, following a soft launch. The SPS published more detailed operational guidance at this point. Prior to this, the SPS followed interim guidance, introduced in response to the Isla Bryson controversy which saw the placement of a double-rapist in the female estate.
The policy is based on gender self-identification, subject to some qualifications.
Under the default policy, only men with a known history of violence against women, including sexual violence, are excluded from the female estate. This ignores that fact most violence against women goes unreported; much that is reported is not prosecuted; and prosecutions can fail. Trans identified men who have been convicted of violence against men can still be placed in the female estate, according to the revised policy.
The policy provides for transfer to the female estate for those with a history of violence if ‘there is compelling evidence that they do not present an unacceptable risk of harm’, with the implication that there is an acceptable level of risk. ‘Unacceptable’ is not defined.
For men not housed in the female estate, access may be provided via work parties, activities, and programmes to allowing mixing ‘with others of their gender identity’. At minimum, this risks, at minimum, psychological harm and/or self-exclusion for some female prisoners.
The policy states ‘gender identity and corresponding name and pronouns will be respected irrespective of where [prisoners] are accommodated’ (page two). It acknowledges a potential conflict here (citing the Forstater ruling); but also views ‘misgendering’ as a potential breach of ECHR Article 3 (page 41).
Female officers cannot automatically ‘opt-out’ of searching men (due to the likelihood that most would). An opt-out route may be available via the SPS’s human resources function; it is unclear if officers will be required to disclose personal details to access this. The Prison Officers Federation declined to support the policy.
Equality and Human Rights Impact Assessment
We believe the Equality and Human Rights Impact Assessment is below the acceptable standard for an organisation of SPS’s size and responsibilities. The assessment ignores or downplays relevant evidence and gives unequal weighting to the vulnerabilities of trans and female prisoners.
The assessment does not identify any potential for unlawful discrimination, adverse impacts, or breaches of human rights. This conclusion could only realistically be reached by placing little, if any, weight on the rights and needs of women.
Whilst the EHRIA notes concerns about the placement of men in the women’s estate, including those raised by female offenders and prison officers, these are diminished. That the EHRIA refers to women as ‘non-transgender women’ (page 12) is indicative of this. In a similar vein, risks associated with the placement of men in the female estate are downplayed as ‘perceived’ and a ‘perspective’ (page 38).
The EHRIA states ‘the previous policy functioned generally well’ (page 22). It does not acknowledge that the SPS was required to put interim guidelines in place, following the placement of a double-rapist in the women’s estate and a major political scandal.
The assessment states the SPS has no evidence from its own population ‘that transgender women pose a risk to non-transgender women’ (page 37). This appears not to recognise its own record of placing violent men in the female estate, including those convicted of murder, torture, voyeurism, and sexual assault.
Relevant cases here include Daniel/Sophie Eastwood, convicted of murder, and held in Scotland’s female estate. Press reports state that whilst housed in the male estate, Eastwood terrorised a female officer, who left her job as a result. Also, Richard McCabe/Melissa Young, convicted of murder and held at Cornton Vale, where he bit a female prison officer.
The EHRIA states that ‘controls and criteria in place will seek to mitigate the risk of predatory transgender women from being placed in the women’s estate and SPS is confident in the robustness of its arrangements’ (page 35). This fails to consider psychological harm and trauma to female prisoners.
Compelled speech
As noted above, the policy views misgendering as a possible breach of Article 3. Compelling staff to refer to a man convicted of rape (Adam Graham/Isla Bryson) as a woman is a serious incursion into freedom of expression that raises issues around power and control. The same is true for women in prison, as illustrated by the current criminal proceedings being brought against a woman prisoner, Janey Sutherley, which include as allegations of criminal conduct that she referred to a male prisoner housed with her using male pronouns and as a “man”. That two former First Ministers refused to refer to Bryson/Graham as a woman is indicative of this.
Legal obligations
The SPS was under no legal obligation to provide for its policy. The ruling in For Women Scotland Limited v The Scottish Ministers [2022] CSIH 4 (FWS1) confirmed that under the Equality Act 2010, the SPS was fully entitled to treat men with the protected characteristic of gender reassignment, who do not hold a GRC, as male. Whether the definition of sex in the Equality Act also includes sex as acquired by a Gender Recognition Certificate is the subject of an imminent UK Supreme Court ruling.
The SPS appear to interpret the Equality Act 2010 as broadly permitting male access to the female estate, based on the protected characteristic of gender reassignment, with exceptions permitted on a case-by-case basis, where proportionate.
The EHRIA states that in relation to single-sex spaces, the gender reassignment provisions in Schedule 3 para. 28 allow the SPS to ‘provide programmes and services within the women’s estate for women who are not transgender, only if the presence of a transgender woman would prevent the achievement of the aims of the programme or service’ (page 39 emphasis added). This ignores both that legal test for single-sex provision is simply that it is ‘a proportionate means to legitimate aim’, and the clear, unchallenged finding by the Inner House in February 2022 that a male person without a GRC has no right to be treated as a woman.
The EHRIA ignores international rights standards on the rights of women. As noted by Methven O’Brien (2023), the starting point for these standards, as well as the Prisons and Young Offenders Institutions (Scotland) Rules 2011 (Part 13), is that prisoners should be accommodated on a single-sex basis.
Capacity to house trans-identified men without recourse to the female estate
The SPS routinely accommodate trans-identified men in the male estate. Between January and March 2023 it housed 12 men with trans identities in the male estate, compared to seven in the female estate (page 11). The SPS also houses other vulnerable men in the male estate, some of whom will be held separately (protected groups).
Given these arrangements, it is difficult to understand why the SPS believes that responsibility for affirming the non-falsifiable identities of some men should fall on women prisoners, who are, in the words of counsel for Sandie Peggie, being subject to the requirement to provide “immersive role play” for such men.
Note: A detailed analysis of the SPS policy and EHRIA can be found in an earlier evidence submission to the Criminal Justice Committee, available below.
