Gender Recognition Act reform

Background

In September 2019 we launched a crowdfunder, aimed at publishing a detailed, evidence-based response to the Scottish Government’s draft Gender Recognition Bill, as well as supplementary briefings and media articles. Our work in this area, together with our analysis on gender self-identification laws and polices to date, will be published on this page. 

Guest blog by Jill Nesbitt: From medical assessment to affirmation: legal gender self-declaration in Ireland (25 February 2020)

Cited by the Scottish Government as its main example of ‘international best practice’, in 2015 the Irish Government passed the Gender Recognition Act. This guest blog by Jill Nesbitt argues that the vast majority of Irish people have little or no awareness of the degree of legislative and institutional change, or relatedly, the extent of policy capture that has occurred in Ireland on this issue in the last few years. 

 

Blog: Scottish Government response to our questions on reforming the Gender Recognition Act (23 February 2020)

On 6 January 2020 we wrote to the Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville, with a set of questions about the Scottish Government consultation on gender recognition reform and draft Bill. This blog discusses the Scottish Government response, received on 21 February 2020. 

 

Blog: Is the Scottish Government seeking to build consensus on gender recognition reform? (21 February 2020)

Cabinet Secretary Shirley-Anne Somerville stated that she is “absolutely determined” to press ahead with reforms to the Gender Recognition Act 2004 (GRA) to allow a person to change their legal sex based on self-declaration alone, and that she wishes to build “maximum consensus” around the proposals. The analysis in this blog suggests that in practice there is little, if any, evidence to indicate that the Scottish Government is seriously engaged in building consensus around its plans for reform

 

Blog: Comparing the 2004 Act and the Scottish Government draft Bill. What changes with self-declaration? (17 Feb 2020) 

The GRA at present has two elements. It specifies what characteristics a person must already have to be entitled to apply for a Gender Recognition Certificate (GRC) (i.e. what they must be), and separately, what they must do to obtain one. In moving to a self-declaration model, the Scottish Government plans to rely simply on actions taken during the application process to differentiate between people who are and are not transgender. This post looks in detail at the legal changes proposed by the Scottish Government, and how these differ to the current law. 

 

Blog: Improving the Gender Recognition Certificate process: a point of consensus? (16 Feb 2020)

Under section 3(3) of the Gender Recognition Act 2004 (GRA) a person applying for a Gender Recognition Certificate (GRC) is required to tell the Gender Recognition Panel (GRP) about their past “treatment for the purpose of modifying sexual characteristics” or any such treatment which is planned or has been prescribed. This post unpicks how this requirement works in practice. We suggest that updating or repealing what appears to be an ambiguous requirement to provide evidence on medical treatment (over and above a diagnosis of gender dysphoria) might provide a point of consensus on GRA reform, independently of the wider debate on statutory self-declaration.

 

Guest briefing: Impact of Gender Recognition Reform on Sex Based Rights (11 Feb 2020)

This briefing note provided to us by Employment Solicitor Rebecca Bull examines the interaction between the Equality Act 2010 (“EqA 2010”) and the Gender Recognition Act 2004 (“GRA 2004”). A summary is available here and the note can be accessed here:
Impact of gender recognition on sex-based rights. 11 Feb 2020

 

Blog: Scottish GRA reform proposals. UK-wide effects (9 Feb 2020)

This blog looks at the potential UK wide effects of gender recognition reform in Scotland. Althougth the Scottish Government’s consultation paper does not include a specific discussion of the cross-border implications, the provisions in the draft Bill suggest that a Gender Recognition Certificate (GRC) by self-declaration could be made available to anyone who spends even a short time with their ordinary residence in Scotland, as well as to anyone living in anywhere in the UK who was born or adopted in Scotland.

 

Briefing: Gender recognition reform in Belgium. Lessons for Scotland (5 Feb 2020)

This briefing looks at gender recognition reform in Belgium and draws out some lessons for Scotland. The analysis is based on data published by the Belgium Institute for the Equality of Women and Men (IGVM) which provides insights into how the introduction of a self-declaration model in 2018 affected the number and character of applications.

A summary of the key points is available here and the full briefing can be downloaded here: Gender recognition reform in Belgium: Lessons for Scotland 

 

Report: Assessment of the Gender Recognition Reform (Scotland) Bill (27 Jan 2020)

On 27 January 2020 we published our review of the Scottish Government’s draft Gender Recognition Reform (Scotland) Bill. This post sets out a summary of the key points and our full review can be accessed here:
MBM Assessment of draft Bill and Consultation 24 January 2020

 

Blog: The placement of trans prisoners (17 Jan 2020)

This blog looks at the Scottish Government position on the placement of trans prisoners in the Scottish Prisons estate, and how this is afftected by a Gender Recognition Certificate. The analysis suggests that the Scottish Government view appears to be at variance with Ministry of Justice policy in England and Wales (which is based on case law), and incompatible with the 2011 Prison Rules. 

 

Press article: Government should take closer look at gender law precedents (Herald, 16 Jan 2020)

This Herald article unpicks what is meant by ‘international best practice’ in relation to reforming the Gender Recognition Act. 

 

Press article: We need more clarity on gender rights debate from Scottish Government (Scotsman, 1 Jan 2020) 

“The Scottish Government is proposing to simplify the ­process for acquiring a gender ­recognition certificate (GRC), which allows a person to change the sex-marker on their birth certificate and has the broader legal effect of changing a person’s legal sex from man to woman (and vice versa). However the Government has yet to answer the central question, which is exactly how acquiring a GRC changes a person’s legal rights of access to single-sex services and occupations.”

Full article at: We need more clarity on gender rights debate from Scottish Government 1 January 2019 

 

Briefing: GRA reform and the changing purpose of the Act (27 Dec 2019) 

This blog argues that the draft Bill reflects a significant shift in thinking about the fundamental purpose of the GRA. The blog can also be accessed as a briefing note here.

The case made for reform shifts the argument for having the GRA away from the limited pragmatic concession envisaged in 2004 to a relatively small population of individuals diagnosed with gender dysphoria, to enshrining in law the right to obtain a legal change of sex based on a person’s self-perception, and to self-determine exactly what that requires by way of personal changes. This change in thinking explains the removal of all third-party involvement from the draft Bill, including the need to produce evidence of a diagnosis of gender dysphoria, and means that, although the consultation does not say so, lawmakers would be deliberating on a Bill with a quite different rationale to the 2004 Act.”

 

Statement: MBM response to the Scottish Government consultation on GRA reform (17 Dec 2019)

We welcome this further consultation. We now need a transparent process, in which substantial questions about law, evidence and analysis receive substantial answers. The Scottish Government must engage fully with people from all perspectives, particularly groups who have expressed concern about the impact of moving to a system of self-declaration.” 

The full statement can be accessed here.

 

Briefing: GRA reform and ‘International Best Practice’ (13 Oct 2019)

The Scottish Government has cited alignment with ‘international best practice’ as a rationale for reforming the Gender Recognition Act to allow for the statutory self-declaration of sex. This post examines the status of the different international instruments quoted by the Scottish Government, and what law above the UK leve appears to require. The briefing note can be downloaded here

 

Blog: 20 questions on GRA reform and gender self-declaration (7 Oct 2019) 

This blog sets out twenty questions on how the Scottish Government anticipate that a reformed GRA based on self-declaration will work in law, the evidence base for reform, and the Scottish Government position on the Equality Act 2010. These are questions to which the answers are currently contested, answered implicitly but not explicitly in the earlier consultation, or otherwise unclear. 


Letter to the Herald: There has been a lack of due diligence and scrutiny in policy-making in the field of gender identity (31 July 2019)

What is therefore felt genuinely by one group to be a series of new hard-won rights, based on gender identity, to another feels too often like an erosion of existing rights, based on sex, which has been agreed behind closed doors, with women left on the outside.

The lack of due diligence, democratic oversight or scrutiny surrounding recent changes represents a serious failure of policy-making across the public sector and leaves ministers and MSPs dealing with two groups, both feeling vulnerable and let down

Letter in response to Vic Valentine (Scottish Trans Alliance) on the introduction of gender self-identification policies without proper scrutiny and due diligence. 

 

Statement: MBM response to Scottish Government plans for GRA reform (14 June 2019)

In June 2019 Cabinet Secretary Shirley-Anne Somerville announced its plans to legislate immediately for gender self-recognition would be paused and that the Scottish Government would publish a draft Gender Recognition (Scotland) Bill for consultation later in the year.

“We believe that a more measured, evidence-based and inclusive approach to reforming the Gender Recognition Act 2004 (GRA) will result in better policy and legislative outcomes, for all affected groups.

The Scottish Government needs to address the existing evidence gaps and provide clarity on how it expects its proposals to affect the practical operation of the single-sex protections set out in the Equality Act 2010. It should also undertake a full, detailed Equality Impact Assessment (EQIA). It also needs to be clear on what is meant by bringing Scotland ‘in line with international best practice’ and provide detailed evidence on the operation of self-identification in other countries.”

Our full statement on this announcement is here. We were also quoted in the Guardian, Herald and Scotsman about the Scottish Government’s plans:    

 
 

Statement: MBM response to SNP politicians’s letter on GRA reform (24 April 2019)

In April 2019 fifteen SNP MSPs, MPs and councillors wrote an open letter calling for a more cautious approach to proposed changes to the Gender Recognition Act (GRA). Our response to the letter is here.

 

Blog: Due diligence and the unregulated introduction of gender self-identification policies (22 Feb 2019)

This blog looks at the introduction of gender self-identification policies ahead of legal reform. We argue that both the ownership of and accountability for such policies can be blurred, and suggest that this can impact on the standard of due diligence.     

In part, the ambiguities described above reflect the complex and close relationships between public and third sector organisations in Scotland, and the prevalence of co-production within policy-making. The fundamental issue is what might be summarised as a lack of due diligence, due most probably to an absence of clear responsibility for ensuring all necessary impact assessments are undertaken, for all protected characteristics, and independent advice taken on points of law, before documents are issued and promoted. Perhaps more value should also be placed on maintaining some critical distance between everyone involved in cases such as these

 

Letter to the Times: Multi-signatory letter to the Times on GRA reform (29 Jan 2019)

In January 2019 we organised a multi-signatory letter calling for a full Equality Impact Assessment (EQIA) on GRA reform, which was covered as a front page news story (29 January 2019). The letter can be accessed here

 

Letter to the National Advisory Council on Women and Girls: Call for a full Equality Impact Assessment on GRA reform (29 Jan 2019)

In January 2019 we wrote to the National Advisory Council on Women and Girls, asking if Council members would consider calling on the Scottish Government to undertake a full Equality Impact Assessment on its GRA proposals. In response, the NACWAG stated that it did not believe that it was the correct channel for this proposal.
 
We believe the absence of a proper EQIA has been detrimental to public debate on GRA reform and will be a detriment to any legislative process if it is not rectified. We therefore hope that Council members will firstly consider calling on the Scottish Government to undertake a full EQIA of its proposals, before proceeding with reform of the GRA, and secondly that they will convey a more general message to the Scottish Government that EQIAs relating to the protected characteristic of “sex” should be given proper priority in every case where they are relevant
Our letter and the NACWAG response are shown here
 
 

Review: How Scotland’s Local Authorities represent the protected characteristic of ‘sex’ (13 Dec 2018)

The post looks at how the 32 Scottish local authorities are representing the provisions of the Equality Act 2010, specifically, whether they are accurately describing the protected characteristic of ‘sex’. Based on a review of online document, we found that only seven of the 32 local authorities consistently list ‘sex’ as the protected characteristic. 

 

Letter to the Sunday Times: Call for a full Equality Impact Assessment on GRA reform (9 Sept 2018)

Full text below:

Assessment test

Ministers should be cautious about proposals to reform the 2004 Gender Recognition Act (2004) to allow a person to change legal sex based on self-identity alone. Having framed the debate exclusively as a transgender issue, the Scottish Government has not undertaken a full equality impact assessment (EQIA) of how any change could affect those with the legally protected characteristic of sex. 

In particular, it has not set out clearly its understanding of the relationship between the GRA and Equality Act 2010, and therefore how it expects its proposals to affect the practical operation of the single-sex protections set out in the 2010 Act. Nor has it risk-assessed the potential for misuse.

A full EQIA that engages with the serious concerns by women should be the next step.

Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie

 

Party manifesto commitments on GRA reform

The following posts set out details of existing political party commitments on GRA reform, as stated in the 2017 UK general election and 2016 Holyrood election: 

2017 UK general election party manifesto commitments on GRA reform
2016 Holyrood election party manifesto commitments on GRA reform

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