WPUK Guidance for the Scottish Government’s consultation on reform of the GRA

The Scottish Government is consulting on its proposals to reform the Gender Recognition Act 2004 (GRA). It published a draft bill and consultation paper in December 2019. The deadline for responses is 17 March. You can find the relevant documents here.

There are two ways of submitting a response: either via the Scottish Government website, or you can send your response in by post. It is not possible to send a response by email.

Please consider responding even if you do not live in Scotland.

The wording of the draft bill means that it will be easy for anyone in the UK to apply for a GRC in Scotland on the basis of self-ID. (See this blog by Murray Blackburn Mackenzie) for more detail.) Also, reform at Holyrood is likely to be closely watched by politicians at Westminster, so this is another opportunity to raise concerns about self-ID, which has already been introduced by many public authorities ahead of legislative change.

There are only five questions to respond to and it is likely that – if you wish to respond in detail – most of your answers will fit into your responses to Q4 and Q5.

Below we have listed a number of points you may wish to raise in your response. We have also highlighted guidance produced by other women’s groups and policy analysts.

• There is no reason in international law for the Scottish Government to reform the GRA. They themselves acknowledge that the current system for changing legal sex is compliant with international law and human rights obligations.
• They persistently cite the need to align with ‘international best practice’ as a rationale for reform. However, they are not clear about which countries best represent international best practice. Nor do they go into any detail about how self-ID operates in other jurisdictions, the effects on women’s sex-based rights and any evaluations undertaken of this law change elsewhere.
• The Scottish Government anticipates that there will be a ten-fold increase in the number of people applying for Gender Recognition Certificates (GRCs) under a self-ID system. It is therefore all the more important for them to spell out what legal rights acquisition of a GRC confers and, for example, what implications a larger cohort of individuals with GRCs has for sex discrimination cases, including equal pay claims. The consultation provides detail on neither aspect. This is a significant failing. (For example, they are not clear whether possession of a GRC strengthens a transwoman’s rights of access to women-only spaces and services and/or whether it weakens the capacity of service providers to exclude transwomen with a GRC from women-only spaces and services.)
• The Justice Secretary has stated on the public record that possession of a GRC does not make any difference to the rights of a transwoman to be housed in the female prison estate. This is a different reading of the law than that of the Ministry of Justice in England and Wales. It is not clear on what basis the Scottish Government holds this view.
• The Scottish Government indicates its support for the single sex exceptions in the Equality Act 2010 (EA). However, it is not clear about the circumstances in which it thinks those exceptions can be invoked. It appears to take a very narrow reading of the law, namely that they can only be invoked at the level of a service user rather than at the level of a service.
• Regarding the single sex exceptions, the Scottish Government appears to rely heavily on the Equality and Human Rights Commission’s 2011 Code of Practice, which some lawyers believe is a misinterpretation of the Equality Act 2010. The Government should be drawing on its own interpretation of the EA. None is forthcoming in the consultation paper.
• The Equality Impact Assessment (EQIA) carried out by the Scottish Government is poor. It overlooks evidence produced by grassroots women’s groups, which have documented the fears of women who have experienced domestic and sexual violence at the hands of men about sharing space with transwomen and the potential for women’s self-exclusion from women-only spaces that include transwomen.
• Instead the Government relies on an absence of evidence as evidence of absence. We think this is unacceptable. If the Scottish Government wishes to weaken existing protections for single sex spaces and services, the burden of proof is on the Government to produce robust evidence that the change will not reduce privacy, dignity and safety for women.
• In the EQIA, the Government cites two academic papers, one of which equates women being uncomfortable with male bodies in intimate spaces with being uncomfortable with women who have undergone double mastectomies following cancer treatment. Another paper compares women’s objections to sharing intimate spaces like toilets and changing rooms with transwomen with the practice of racial segregation in bathrooms in 1950s America. Both analogies are deeply offensive.
• As well as problems with the evidence provided in the EQIA (see above), the overall limited evidence base the Scottish Government is drawing on in asserting there are no implications for women is clear from a recent FOI.
• For example, respondents may wish to point out that the Scottish Government fails to reference anywhere this large scale Swedish study which appears to be unique in providing high quality data comparing levels of criminal convictions, including for violent offending, for women, men, fully surgically transitioned transwomen and fully surgically transmen.
• Responses may want to draw attention to any other evidence relevant to the issues raised by the consultation, including local and personal experience, from the UK or elsewhere. This can include relevant press reports.

Other guidance

For Women Scotland have produced guidance for those wishing to respond to the consultation, which you can find here.

Women and Girls Scotland have produced guidance to answer Questions 4 and 5 in the consultation, which you can find here.

Policy analysts, MurrayBlackburnMackenzie, have produced an assessment of the Scottish Government’s draft bill and consultation, which you can find here.

What else can you do?

If you live in Scotland, please consider contacting your MSPs and MP about these proposed changes. Each Scottish citizen has one MP, one constituency MSP and seven list MSPs. Please consider contacting them all either in writing or by turning up at one of their surgeries. You can find out who your MSPs are here.

If you live in another part of the UK, please consider contacting your MP and AM (where relevant). You can draw attention to the fact that the Scottish Government’s proposals will have a cross border effect, but you can also highlight your concerns that self-ID has been introduced by many public authorities ahead of any legislative change either at Holyrood or Westminster.

You can find your Welsh Assembly AM here.

You can find your Northern Ireland AM here.

You can find your MP (all UK citizens) here.

29th February 2020