Reform ‘under the radar’? Lessons for Scotland from the Development of Gender Self-Declaration Laws in Europe
Edinburgh Law Review vol. 24 (2): pp 281-289. May 2020
An open access copy is available here.
Both the Scottish and UK Governments have recently consulted on proposals to amend the Gender Recognition Act (GRA) 2004 that would enable someone to change their legal sex simply by making a statutory declaration. We were among those who responded to the consultation expressing concern that the Scottish Government’s proposals failed to recognise a conflict with women’s sex-based rights as enshrined in the Equality Act 2010.
In its consultation, the Scottish Government relied heavily on a narrative of ‘international best practice’ as a rationale for reform, citing non-binding legal instruments, whilst conceding that current arrangements for changing legal sex are compliant with recent rulings from the European Court of Human Rights.
Our analysis suggests that those jurisdictions in Europe who have already introduced self-declaration models for legal sex change have tended to do so with very little public scrutiny. A report prepared by international law firm Dentons aimed at those advocating for self-declaration stated that pursuing reform ‘under the radar’ (in its own words) had been a deliberate strategy in Ireland, and advised that proponents of reform should seek to avoid media coverage and ‘latch trans rights legislation onto more popular legal reforms’ – such as same-sex marriage.
We argue that the pace and breadth of the uptake of these laws may be attributable to a process of policy capture, whereby policymaking is skewed in favour of one particular interest group at the expense of others. There are lessons here for the UK and Scottish Governments as they consider reforms to the GRA. Both should seek to secure broad-based support for any reforms, and consider potential effects on other rights-holders, not least women.
Losing Sight of Women’s Rights: the unregulated introduction of gender self-identification as a case study of policy capture in Scotland
Over recent years policies that represent a profound conceptual change in our understanding about what it means to be a woman or a man have been introduced in Scotland, premised on ideas about self-defined gender identity. Departing from the legal definition of sex in the Equality Act 2010, as based on biological sex, this shift has taken place across a range of policy areas, including criminal justice, health, local government equalities policies, and guidance for women’s services, without due diligence, democratic oversight or scrutiny.
This paper presents two detailed cases studies where unregulated gender self-identification principles have gained traction: the census and Scottish Prison Service policy on transgender prisoners. While badged as inclusive, in both cases the analysis shows how decision-making has been directed towards the interests of one specific interest group, to the detriment of another, women and girls. Highlighting the failure of institutional safeguards designed to ensure that public policies are consistent with the law, the paper raises serious questions about policy capture and the vulnerabilities of democratic policy-making to ideologically-driven lobbying.
Within the last two years, respective proposals by the Scottish and UK Governments to reform the Gender Recognition Act 2004 (GRA) to allow people to change their legal sex based only on making a legally-registered self-declaration have sparked an intense debate on how sex and gender identity should be defined in law and policy.
This paper considers how gender self-identification, without any requirement that a person has gone through any form of legal process, had already become a feature of Scottish policy-making and practice long before public consultation began on reforming the GRA.
The first case study examines policy development on the sex question in the UK censuses. Tracing the piecemeal introduction of self-identified gender identity principles from 2001 onward, the analysis shows how decision-making on the sex question has been shaped by a reference to a limited group of interests that have excluded those of women. Looking ahead, the paper argues that how the sex question is framed in Scotland’s 2021 census will set a key precedent for how sex is understood as a policy and legal category, and that the current attempt to put the principle of gender self-identification on a statutory basis risks setting a legal precedent that will challenge the very basis of the Equality Act 2010. The paper also argues that the current policy direction, which conflates sex and gender identity, carries significant risks in terms of data quality and reliability.
The second case study looks at Scottish Prison Service (SPS) policy on transgender prisoners, focusing on decision-making in relation accommodation and intimate searches. While the policy was relevant to the well-being and safety of two vulnerable groups of prisoners, the analysis shows that decision-making focused exclusively on the interests of transgender prisoners, and ignored those of female prisoners. Notably, the Equality Impact Assessment, intended to consider how a policy might affect the nine protected characteristics in the Equality Act 2010, failed to recognise that the policy would affect female prisoners and prison officers. The analysis also shows that the operation of SPS transgender prisoner policy remains opaque, with most information in the public domain accessed by Freedom of Information and/or media reports.
Institutional safeguards and policy capture
More broadly, the paper highlights the failure of institutional safeguards designed to ensure that public policies are consistent with the law. It is clear that public authorities have repeatedly failed to assess properly the impact on other groups who have specific protections under the Equality Act 2010, as the Act requires, and that little thought has been given to the possibility that such policies might be open to abuse by individuals with malign intent, irrespective of gender identity.
As gender self-identification becomes more common, either by law or, as in Scotland, without legal change, there is evidence to suggest that failing to anticipate such abuse is naïve. While proponents of GRA reform maintain that the unregulated introduction of gender self-identification in Scotland has not led to any problems, this remains unsubstantiated, principally because organisations have not systematically gathered information on the impact of the changes already made.
On one analysis, the analysis simply reflects that women remain, as a class, less powerful than men. From another perspective, it is a story about policy capture that demonstrates how a small number of influential actors appear to have secured a monopoly on how sex and gender identity are understood within Scottish policy-making. That such a paradigm shift has taken place without formal scrutiny or proper monitoring, far ahead of legal change, raises serious questions as to why there has been such a persistent failure to consider the possible wider impacts of gender self-identification, especially on women, and the adequacy of institutional safeguards against well-organised lobbying.
This is now a significant challenge for the Scottish Government, which needs to review its policies, make clear its commitment to upholding the sex-based protections in the Equality Act 2010, and find a way to allow for open debate on sex and gender identity issues. The dynamics and processes that have allowed this change to happen on such a scale with so little scrutiny for so many years, also deserve much closer attention, to understand the specific vulnerabilities of women’s rights, and the vulnerabilities of democratic policy-making more generally to ideologically-driven lobbying.
Key points and arguments: Q&A
1. What is meant by “ideologically driven”?
We mean lobbying that is driven by a strong conviction in the truth of a specific idea, particularly one which has potentially broad implications across government. We differentiate between this and other forms of highly-focussed lobbying, such as advancing a material interest in one area (for example, in a planning issue), because we believe it raises specific questions for public authorities. How well able are they to look beyond the strength and sincerity with which arguments are put to them? How good are they at recognising where there will be wider implications in accepting a specific proposition in one particular context, or where something is being advanced in one setting as part of a broader aim?
2. What is the ideology that the paper refers to?
A belief that self-declared gender identity should take precedence over biological sex in most, or even all, contexts, which has driven policymaking in a number of areas, two of which we highlight in our paper. This contrasts with the premise of underlying existing anti-discrimination legislation in the UK which is – rightly, in our view – that a reading of the evidence shows that the physical, economic and social consequences of being born and living with a female body are so significant that women deserve specific rights and protections in law on that basis.
3. Do you support the right of LGBT groups to lobby government on this issue?
Absolutely. Lobbying in good faith on behalf of a particular interest group is a legitimate activity in a democracy. Our criticism in the article is reserved for government and public authorities, whose job it is to weigh up and balance the needs and concerns of all interest groups. They also have a responsibility in law to foster good relations between those with different protected characteristics. In the two case studies we cite, both public authorities have failed.
4. What is an “institutional safeguard”?
An institutional safeguard is a mechanism to prevent an institution from being captured by one set of interests or interest groups. One mechanism available to public authorities (sometimes also used by organisations outwith the public sector) to protect themselves against policy capture is an Equality Impact Assessment (EQIA). If done properly, an EQIA should consider the potential impact of a policy on all nine protected characteristics listed in the Equality Act 2010. Although it will often be proportionate to decide there are no impacts to discuss for some or all characteristics, each one should be thought about.
5. But both NRS and SPS undertook EQIAs on the census/transgender prisoner policy?
They did. However, the NRS’ EQIA considered the protected characteristics of sex and gender reassignment together, which meant that any conflict between the two groups was not considered. The SPS’ EQIA did not consider the potential impact of their policy on those with the protected characteristic of sex. Nor did they consult any interest groups that represent women. These EQIAs were not conducted with adequate seriousness.
6. It’s not clear that the Equality Act 2010 refers to biological sex?
We are aware that some people hold different interpretations of the Act. Our reading of the Act, which we believe is well-founded and not unusual, is that when it uses “woman” and “man” to divide the population into two groups within the protected characteristic of “sex”, and further defines these as “female” and “male” people, the distinction intended is based on biological sex, as observed and recorded at birth. This is notwithstanding that the interaction with the GRA means that those with a Gender Recognition Certificate are also entitled to be recognised as a woman or a man, as appropriate, in most, although not all, circumstances where those categories are legally relevant. The conceptual shift which explains conflict over the interpretation of the Equality Act is what concerns us. We think it may go some way to explaining the drift in the minds of policymakers when it comes to issues of sex and gender identity.
7. Do you support using the census to gather data on people with transgender identities?
Yes, we support the proposal for a new voluntary question to collect data on the transgender population and believe it should include the opportunity for people to record how they identify. We believe collecting data separately both on sex and on transgender identities is the best way to produce the most helpful data about and for everyone.
8. What do you think the prisons policy should be?
We think whether there is scope to use women’s prisons to hold some transgender prisoners who identify as women, and if so which, should be decided only after careful discussion with women prisoners, their representatives and staff who work in those settings. Any policy affecting moves into the women’s estate should have as its central concern the potential impact on women prisoners’ physical and mental well-being and safety. The SPS needs to develop other approaches to custody which support the physical and mental well-being and safety of those transgender prisoners who identify as women who cannot or do not wish to be placed in a women’s prison, who already appear to make up the majority of cases under the existing policy.
 For a discussion of why DSD (sometimes called intersex) conditions are a separate issue which do not affect this analysis, we recommend this DSDFamilies briefing:
- The Times. Our wimpish leaders are bullied by activists. Column by Trevor Phillips, former Chair of the Equality and Human Rights Commission.
- Herald Report says trans lobbying groups ‘captured’ public policy, putting women and girls at risk 29 July 2019.
- Holyrood Magazine Scottish trans policy ‘detrimental’ to women and girls 29 July 2019.
- Holyrood Magazine (Murray and Blackburn) Losing sight of women’s rights: policy capture and public policy 29 July 2019.
- Scottish Legal News Academics call on Scottish government to uphold Equality Act amid claim of ideologically-driven lobbying from trans rights advocates 31 July 2019.
- STV News STV News at Six (includes interview with Lucy Hunter Blackburn) 2 August 2019.
- STV News Concerns over housing trans inmates in women’s prisons 2 August 2019.
Links to article and related material
- The text of a short talk based on some of the material in the article given on 5 June 2019 is here (Speaking text 5 June).
- Material relating to preparation for the 2021 census on this site is collected here.
- Since the piece was written, the Ministry of Justice announced an update to its policy on transgender prisoners, details of which can be found here. The changes do not affect the comparison made in the article between the SPS and MoJ policies.
- The report by Women and Girls Scotland, referred to in the piece and which to the best of our knowledge remains the only published evidence on the impact of the prisons policy in Scotland, is here (page 17 onward).
- The review of prison policy Scotland mentioned in the text was referred to in this exchange in the Scottish Parliament on 20 June, after the article was written. It appears to be the only reference to the review on the official record.
Original author statement: July 2019
“We share the view of Professors Cordelia Fine, Peter Singer and others, that the definition and interpretation of “sex” and “gender” in law and public policy is a legitimate topic of study for academics. We would add that the specific issue of whether and how public bodies have introduced policies based on self-declared gender identity, ahead of any change to the law, and the impact of any such changes, is a matter of public interest and properly deserving of scrutiny.
We recognise that there are different views as to what the content of law and policy should be in this area, and that these are strongly held. We believe that taking the debate forward productively must include considering the evidence available analytically, and in detail, as with any area of public policy. We therefore encourage any discussion of the article to concentrate on the specific points made in the text.
We commend Scottish Affairs for publishing this piece and are grateful for the support we have received from the journal.”
Lucy Hunter Blackburn and Dr Kath Murray, July 2019
Updated author statement: Feburary 2020
“We are grateful to have the opportunity to put it on the public record that our paper in Volume 28 (3) of Scottish Affairs (Murray & Hunter Blackburn, 2019) has a third author. Shortly before the journal proofs were submitted to EUP, Lisa Mackenzie removed her name from the paper to address a perceived conflict of interest on the part of her then employer. Whilst it is not possible to reinstate her authorship on the Version of Record, we are pleased to be able to acknowledge Lisa’s substantial contribution to the paper here.
That this article attracted such substantial interest, with 8,123 downloads within three months of publication, demonstrates the need for academic publishing in this area from multiple perspectives, to inform policy and law making. We are committed to open discussion of the evidence and arguments presented in the paper, and continue to stand ready to engage with any specific points submitted to us in the conventional way.”
Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie, February 2020