Gender Recognition Reform (Scotland) Bill: consultation

Chapter 5: The Impact of Gender Recognition Reform on Women

Introduction

5.01. The Scottish Government recognises there are concerns that have been raised about the potential impact of gender recognition reform on women. This Chapter addresses these concerns. The Scottish Government recognises the concerns must be fully considered.

5.02. The Government also recognises that issues have been raised in relation to the reform of the GRA which are not always about the process itself, but in relation to other public policy. As outlined in the statement to Parliament by the Cabinet Secretary for Social Security and Older People on 20 June 2019, the Scottish Government is developing guidance to make sure that policy makers and service providers understand better how to ensure that the rights of women and trans people can be collectively realised. The guidance will be used across the Scottish Government, will be available to all public authorities and will be publicly available.

5.03. The Scottish Government is clear that reforming the GRA does not diminish the rights of women. The Government remains committed to the protection of women as well as achieving equality and challenging discrimination.

5.04. The Scottish Government’s strategy for preventing and eradicating all forms of violence against women and girls is Equally Safe.^[45] This strategy is rooted in our analysis that this violent and abusive behaviour is carried out predominantly by men against women and girls precisely because they are female. This behaviour stems from systemic, deep-rooted women's inequality and includes domestic abuse, rape, sexual assault, commercial sexual exploitation (like prostitution), and so called 'honour based' violence like female genital mutilation and forced marriage.

5.05. The strategies to prevent these crimes and to take effective action when they occur, wherever that may be, will continue to be rooted in our analysis that this unacceptable behaviour is carried out predominantly by men against women and girls. Reforming the GRA will not change the Scottish Government’s approach in these areas.

5.06. The Cabinet Secretary said in her Parliamentary statement that concerns about the impact GRA reform would have on women were not, at their core concerns about trans women. “Rather they are about men who seek to abuse women. The fear is that some men will misuse trans equality to access women and do us harm. I understand that. I understand that predatory men will always seek to find ways to harm women. That’s not a new problem in Scottish or global society – nor is it a problem created by, or the fault of, trans people.”

5.07. People cannot take advantage of the GRA to hide a criminal offence. Individuals can obtain disclosure certificates for employment purposes, but previous names must be provided as part of that process. If a trans person is applying for a disclosure certificate, they can apply using their present name, and that name is all that they have to include on the application form. Separately, and in the strictest confidence, they must also provide any previous names to Disclosure Scotland. It is a criminal offence to make a false statement in relation to an application for a disclosure certificate. As stated in Chapter 4, it will remain a criminal offence for anyone to lie or be fraudulent in order to obtain a GRC.

5.08. This consultation includes a draft Equality Impact Assessment (EQIA) at Annex J. The next chapter of this consultation seeks comments on the draft Impact Assessments. When the Gender Recognition Reform (Scotland) Bill is introduced into Parliament, the Scottish Government will at the same time publish a final version of the EQIA, taking account of comments received as a result of this consultation.

The Equality Act 2010

General

5.09. As outlined in Chapter 2, the Equality Act 2010 (“the 2010 Act”) is key equality legislation. It is generally a reserved matter for the UK Government and cannot be amended by the Scottish Parliament. A key aim of the 2010 Act is to prevent discrimination against people who belong to one of the nine protected characteristics.^[46] The nine protected characteristics include “sex” and “gender reassignment”.

5.10. For “sex” section 11 of the 2010 Act provides—

“In relation to the protected characteristic of sex—

(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman.”

5.11. In section 212(1) of the 2010 Act the definition of “woman” is “means a female of any age” and the definition of “man” is “means a male of any age”. Therefore, under the 2010 Act, the protected characteristic of sex includes a reference to a female (of any age) and a reference to a male (of any age).

5.12. For “gender reassignment”, section 7(1) of the 2010 Act provides that

“ A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”

5.13. As a consequence, the “gender reassignment” protected characteristic is wider than people who have obtained a full GRC: it covers people who intend to, are transitioning, or have transitioned. To have the protected characteristic a person does not need to have undergone medical or surgical treatment. The Explanatory Notes to section 7 of the 2010 Act^[47] give as an example:

“A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would have the protected characteristic of gender reassignment for the purposes of the Act.”

5.14. The 2010 Act has a number of exceptions to the general provisions on non-discrimination. Some of these exceptions are directly relevant when considering the position of women in relation to gender recognition. They are considered in more detail below. The exceptions to the 2010 Act will remain in place after the GRA has been reformed.

The relevant exceptions in the 2010 Act

Single sex services

5.15. The 2010 Act allows women only services and allows services to exclude trans women when it is proportionate and in pursuit of a legitimate aim. Paragraph 28 of schedule 3 the 2010 Act sets out the exception which relates to trans persons, and provides:-

(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

(a) the provision of separate services for persons of each sex;

(b) the provision of separate services differently for persons of each sex;

(c) the provision of a service only to persons of one sex.

5.16. The 2010 Act exception for single sex services will not change due to the proposals to reform the process for applying for a GRC. It will remain in place.

5.17. This provision would, for example, allow the operator of a domestic abuse refuge designed for women only to exclude a trans woman from the service if the operator judges that this is a proportionate means of achieving a legitimate aim. This is likely to involve carrying out a risk assessment.

5.18. Providers of services such as domestic abuse refuges may receive funding from the Scottish Government. As part of any application for funding, providers are asked to submit a plan on trans inclusion. Requiring an inclusion plan from funding recipients does not result in funding recipients being unable to rely on a relevant single sex exception. A recipient of the fund would be able to apply an exception which is available under the 2010 Act and could state as much in their inclusion plan.

5.19. All Scottish Government funding recipients must comply with the law, including the 2010 Act. It is for an individual organisation to make decisions as to service provision and how and when to use the exceptions within the 2010 Act.

5.20. As indicated above, the 2010 Act is generally a reserved matter for the UK Government. The UK Government’s 2018 consultation on reforming the GRA in England and Wales said in paragraph 117:

“Trans people with a GRC can still be excluded from single sex services, or provided with a different service if it is proportionate to do so on the facts of the individual case. Although reliance on this exception should be rare, it is most likely to be needed in particularly difficult and understandably sensitive areas, such as the provision of women’s domestic violence refuges. Whether it is proportionate to exclude a trans person would have to be judged by the service provider on a case by case basis, considering the trans person’s needs and the impact on other service users. Refuges will continue to make sensible risk assessments of potential service users. Such assessments are required of all users, whether or not they are trans: for example the refuge might want to prevent an abusive lesbian from entering when her abused female partner is inside, or it may exclude a woman with a history of violence and instability.”^[48]

Occupational requirements - general

5.21. Schedule 9 of the 2010 Act^[49] sets out exceptions in relation to work.

5.22. Paragraph 1 of schedule 9 provides a general exception to what would otherwise by unlawful direct discrimination, including a requirement that the person not be a trans person, where there is an occupational requirement due to the nature or context of the work, and this is a proportionate means of achieving a legitimate aim.

5.23. In the Explanatory Notes for the 2010 Act an example given is that “a counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress”.^[50]

5.24. When appropriate, this exception could also be used in relation to health services where, for example, intimate health and personal care services are provided.

5.25. As indicated above, the 2010 Act is generally a reserved matter for the UK Government. The UK Government’s consultation on reforming the GRA in England and Wales said in paragraph 119:

“The Government’s view is that this provision would not be undermined by amendments to the legal recognition process set out in the GRA. Having a GRC will be a factor that employers consider when determining whether imposing an occupational requirement is a proportionate means of achieving a legitimate aim, but it is not the only factor.”^[51]

5.26. The 2010 Act general occupational requirement exception will not change following GRA reform.

5.27. A further point which has been raised in this area is whether section 22 of the GRA,^[52] on prohibition of disclosure of information, could make it harder to use the general occupational requirement exception.

5.28. Section 22(1) makes it a criminal offence for a person who has acquired “protected information” in an “official capacity” to disclose the information to any other person. “Protected information” means information which relates to a person who has made an application for a GRC and which concerns that application or, if the application is granted “otherwise concerns the person’s gender before it becomes the acquired gender”.

5.29. The Scottish Government considers it wholly appropriate to safeguard trans people in this way.

5.30. There are a variety of exceptions in section 22, at subsection (4) and in an Order made by the Scottish Ministers under section 22(6).^[53] One point which might arise when using the general occupational requirements exception is that some people in an organisation (eg people in its HR department) may know about a person’s trans history but those actually taking the decisions on staff deployment (eg line managers) may not. In these circumstances, and when there is a legitimate case to use the general occupational requirements exception, the Scottish Government considers that it would be appropriate for information about a person’s trans history to be shared in a strictly limited, proportionate and legitimate way.

5.31. To facilitate this, the Scottish Government will consider before any Bill to reform the GRA is introduced to Parliament if:

• Further exceptions to section 22 should be made, by way of a further Order under section 22(6).
• Scottish Government guidance on section 22 should be issued.

5.32. We will outline our approach in this area when any Bill is introduced into Parliament.

Occupational requirements - religious requirements

5.33. Paragraph 2 of schedule 9 relates to religious requirements, and covers a narrow range of employment of ministers of religion and some lay posts to promote and represent religion. If the criteria are met, it is possible to refuse to employ a trans person in these posts.

5.34. Paragraph 3 of schedule 9 relates to other requirements relating to religion or belief, where, if the criteria are met, it is possible to refuse to employ a trans person for the work.

5.35. The 2010 Act exception for occupational religious requirements will not change following GRA reform.

Occupational requirements – UK armed forces

5.36. Paragraph 4 of schedule 9 allows trans persons to be excluded from service in the UK armed forces if this is a proportionate way to ensure the combat effectiveness of the armed forces. In practice, the Scottish Government’s understanding is that all branches of the UK armed forces permit trans people to serve. However, the 2010 Act exception for occupational requirements relating to the armed forces will not change following GRA reform.

Occupational requirements - employment services

5.37. Paragraph 5 of schedule 9 would allow a trans person to be excluded by an employment service provider, under section 55 of the 2010 Act, if one of the exceptions set out in paragraphs 1 to 4 of the schedule (discussed above) apply. This will not change following GRA reform.

Communal accommodation

5.38. Schedule 23 sets out general exceptions which apply throughout the 2010 Act. Paragraph 3 relates to communal accommodation which in terms of sub-paragraph (5) is “residential accommodation which includes dormitories or other shared sleeping accommodation which for reasons of privacy should be used only by persons of the same sex”.

5.39. Paragraph 3(1) of the schedule provides that

“A person does not contravene this Act, so far as relating to sex discrimination or gender reassignment discrimination, only because of anything done in relation to—

(a) the admission of persons to communal accommodation;

(b)the provision of a benefit, facility or service linked to the accommodation.”

5.40. Therefore, trans persons can be excluded from communal accommodation when this is required for reasons of privacy, and this is a proportionate means of achieving a legitimate aim.

5.41. As indicated above, the 2010 Act is generally a reserved matter for the UK Government. The UK Government’s consultation on reforming the GRA in England and Wales said in paragraph 121:

“The Government’s view is that this provision would not be undermined by amendments to the legal recognition process set out in the GRA. Having a GRC will be a factor that organisations or accommodation providers will consider when offering communal accommodation, but it is not the only factor.”^[54]

5.42. The 2010 Act exception for communal accommodation will not change following GRA reform.

Sport

5.43. The GRA as originally enacted included provision on sport at section 19 but this was repealed for Scotland, and England and Wales and replaced by section 195 of the 2010 Act.^[55] Section 195 contains provision allowing restrictions on trans people participating in sport to be imposed if necessary to uphold fair competition or the safety of competitors.

5.44. An example given by the Equality and Human Rights Commission (“EHRC”) in their published guidance^[56] on where a difference in treatment of a trans person may be lawful in relation to sport is:-

“competitive sports: a sports organisation restricts participation because of gender reassignment. For example, the organisers of a women’s triathlon event decide to exclude a trans woman. They think her strength gives her an unfair advantage. However, the organisers would need to be able to show this was the only way it could make the event fair for everyone.”

5.45. The Sports Council Equality Group (SCEG) includes representation from sportscotland, Sport England, Sport Wales, Sport Northern Ireland and UK Sport. The Sports Councils collectively own the Equality Standard for Sport,^[57] which is a framework for assisting sports organisations to widen access and reduce inequalities in sport and physical activity from under represented individuals, groups and communities. To support sports with the Equality Standard, SCEG has produced guidance on trans participation in sport at domestic and international level.

5.46. SCEG is about to launch a review of the domestic guidance. This will involve consultation with a wide group of stakeholders including both women’s rights and trans rights groups to ensure all views are considered. The review is expected to be completed by the autumn of 2020.

Insurance

5.47. Paragraph 23 of schedule 3^[58] provides that it is not a contravention of section 29 in relation to gender reassignment discrimination, to do anything in connection with insurance business in relation to an existing insurance policy.

5.48. Paragraph 20 of schedule 9^[59] provides that it is not a contravention of Part 5 of the 2010 Act, so far as relating to gender reassignment discrimination, to do anything in relation to an annuity, life insurance policy, accident insurance policy or similar matter involving the assessment of risk if it is reasonable to do so based on reliable data.

5.49. The 2010 Act exception for insurance will not change following GRA reform.

Marriage and civil partnership

5.50. Paragraph 25 of schedule 3^[60] provides that an approved celebrant does not contravene section 29 of the 2010 Act, so far as relating to gender reassignment discrimination, only by refusing to solemnise the marriage, or register the civil partnership, of a person that the celebrant reasonably believes acquired their gender under the GRA.

5.51. This exception makes specific provision for Scotland, reflecting that the way in which marriages are solemnised and civil partnerships are registered is different in Scotland when compared with England and Wales.

5.52. The 2010 Act exception in relation to marriage and civil partnership will not change following GRA reform.

Conclusion on the exceptions in the 2010 Act

5.53. The Scottish Government considers that, as outlined above, there are a range of exceptions in the 2010 Act which can be used when appropriate to protect women, which might in some specific cases require the exclusion of trans women, if the conditions within the exception are met. These exclusions will not change following GRA reform.

5.54. The 2010 Act is largely reserved and responsibility for the legislation on the exceptions rests with the United Kingdom Government. The Women and Equalities Committee at the UK Parliament published a report on “Enforcing the Equality Act: the law and the role of Equality and Human Rights Commission” on 17 July 2019.^[61]

5.55. Recommendation 15 by the Committee, and the UK Government response was:

“We do not believe that non-statutory guidance will be sufficient to bring the clarity needed in what is clearly a contentious area. We recommend that, in the absence of case law the EHRC develop, and the Secretary of State lay before Parliament, a dedicated Code of Practice, with case studies drawn from organisations providing services to survivors of domestic and sexual abuse. This Code must set out clearly, with worked examples and guidance, (a) how the Act allows separate services for men and women, or provision of services to only men or only women in certain circumstances, and b) how and under what circumstances it allows those providing such services to choose how and if to provide them to a person who has the protected characteristic of gender reassignment. (Paragraph 190)

As set out in response to recommendation 14, the Government is planning to develop and publish non-statutory guidance on how the Equality Act 2010’s single and separate sex service exemptions apply. There are limitations to what could be achieved through statutory guidance as there is no case law in this space that moves beyond interpretation of the original legislation, so it would not be possible to set out ‘rules’ for the application of exemptions: statutory guidance must reflect existing law, it is not a means of establishing new law.”

5.56. The Scottish Government agrees that while the 2010 Act’s single and separate sex service exemptions will continue to apply after reform of the gender recognition process, non-statutory guidance by the UK Government could be helpful.

Conclusion

5.57. The Scottish Government has carefully considered whether moving to a statutory declaration-based system for obtaining legal gender recognition, as outlined in the draft Bill, would impact adversely on the rights of women.

5.58. The key question in this context is very much about whether a change in the system for obtaining legal gender recognition would adversely affect women’s rights. The Scottish Government has concluded that it would not.

5.59. In reaching this view, the Scottish Government has considered international experience. As outlined in Annex E, there are a variety of systems for obtaining legal gender recognition in other countries. There is no evidence from overseas which the Scottish Government is aware of which would suggest that moving to a statutory declaration-based system for obtaining legal gender recognition would impact adversely on the rights of women. Under the system which the Scottish Government is proposing for Scotland obtaining legal gender recognition will remain a serious step which could not be undertaken lightly.