Letter to Scottish Government Cabinet Secretary Shona Robison

Dear Cabinet Secretary,

Thank you for making time to meet with us on 24^th January.

As you know, the time we had was very brief so we are writing to follow up with a precis of the points we raised and some follow up questions.

In general, we would like to put it on record that we do not think that the Scottish Government has engaged in any meaningful way with the concerns many women have voiced about proposals to introduce self-declaration for changing an individual’s sex in law, despite the two consultations. It is our view that the proposed legislation may be enacted without due diligence or robust impact assessments that will enshrine injustices and inequalities that could – and should – be avoided. We concur with the recent statement from the Equality and Human Rights Commission (EHRC) that “more detailed consideration is needed before any change is made to the provisions in the Act”.

We want to emphasise the points we made about the importance of

• The collection of robust, high quality data on sex
• Clear definitions of terms
• Impact assessments on different groups of enshrining self-declaration of sex into law
• Evidence-based guidance on the interaction between the GRA and the Equality Act 2010

We first raised our concerns about the Scottish Government’s proposals in February 2018 and we regret that none of the substantive issues we raised then have been addressed.

We would also like to restate our belief that there has been a failure by political parties, governmental departments, publicly funded NGOs and other organisations to facilitate the very necessary discussions between different groups on how any changes to the law can meet the needs, uphold the legal rights, of all.

We have been the constant target of the kind of toxicity and abuse you mentioned but believe that much of this could have been avoided by the proper execution of civic duties by those in positions of agency and power. Instead, this vital debate has been side-lined to social media where it has not been well-served.

We have repeatedly been told that GRA reform will have no impact on single sex exceptions under EA2010 but no-one has been able to provide any analysis of evidence or impact assessments. You stated that the EHRC’s forthcoming guidance on single sex spaces would bring clarity here, but we noted in response that this means the Scottish Government is ‘flying blind’ by introducing its reforms without sight of the EHRC guidance.

There is already much confusion about how the Equality Act and GRA interact. We believe the Scottish Government’s position on the legal effects of holding a Gender Recognition Certificate (GRC) is at best speculative. The UK Government takes the opposite view: the MoJ prisons policy says explicitly that male prisoners with GRCs should be treated as if they were biological females.

Enshrining the principle of self-identification in law will make it impossible to roll back existing self-ID policies and will bleed into social norms and conventions. We are concerned that it will fall to low paid frontline workers to police women only spaces and services.

The Scottish Government is relying on ‘international best practice’ as rationale for introducing self-ID. In the meeting, you claimed the situation in Ireland was a good comparator because it was so similar to Scotland. The evidence we have is to the contrary. The legal situation is very different in Ireland. Problems are also emerging in other jurisdictions but we were not reassured that the Scottish Government has undertaken any evaluation of the impacts on women and girls. Absence of evidence is not evidence of absence.

In our meeting, we did briefly raise the question about the potential impact on the ability of women to take sex discrimination cases by increasing the size of the GRC-holding population. You said you would look into that. With an increased population of GRC holders, there is greater potential to extinguish women’s ability to take sex discrimination cases. If a woman’s comparator is someone born male who has changed their sex in law to female, the woman will lose her ability to take a case.

We would be grateful if you could let us know what analysis your officials have undertaken to assess the potential impact on women in this area.

As we said in our meeting, as a UK-wide group, WPUK is interested in whether the Scottish Government has scoped the potential for cross-border effects of reforming the GRA in Scotland and dropping the need for a diagnosis of gender dysphoria. The ability to apply to change sex in Scotland will rest on ‘ordinary residence’. This is not defined and could result in someone applying using a temporary address here, e.g. a short stay for a holiday or time at a higher education institution. Also, the effects of changing sex in law will apply throughout the UK.

Please could you indicate what discussion you have had with the UK and other devolved governments on this.

We look forward to hearing from you.

WPUK

Related articles

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WPUK Submission to Scottish Government consultation on GRA reform

WPUK submission to Scottish Government: Implementation of Gender representation on Public Boards (Scotland) Act 2018

Woman’s Place UK submission on Hate Crime & Public Order (Scotland) Bill

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