Gender Recognition Reform (Scotland) Bill: equality impact assessment

Equality Impact Assessment Record

Title of policy/ practice/ strategy/ legislation etc.: The Gender Recognition Reform (Scotland) Bill

Minister: Cabinet Secretary for Social Justice, Housing and Local Government

Directorate: Division: Team: Civil Law and Legal System

Is this new policy or revision to an existing policy?: Revision to existing policy (Gender Recognition Act 2004)

Purpose of this Equality Impact Assessment (EQIA)

1. In line with legal duties when proposing a new or revised policy, including Bills, the Scottish Government has prepared this EQIA. The aim of this EQIA is to assess any impacts of applying a proposed new or revised policy or practice against the needs relevant to the Scottish Government's duty to meet the Public Sector Equality Duty (PSED). It considers the impact of this policy proposal on people with one or more of the protected characteristics listed in the Equality Act 2010. In line with good practice this EQIA will be kept under review.

2. Reform of the Gender Recognition Act 2004 (the GRA) would contribute to the Scottish Government's National Outcome of: "We respect, protect and fulfil human rights and live free from discrimination".^[1] It would do this by improving the process for applying for legal gender recognition, as the current process can have an adverse impact on applicants due to the requirement for a medical diagnosis and supporting evidence, and the intrusive and lengthy process. In doing this, the Scottish Government remains committed to upholding the rights and protections that women and girls currently have under the 2010 Act.

3. In developing this policy the Scottish Government is mindful of the three needs of the PSED (eliminate unlawful discrimination, harassment and victimisation; advance equality of opportunity between people who share a protected characteristic and those who do not; and foster good relations between people who share a protected characteristic and those who do not) and recognises that while the measures may positively impact on one or more of the protected characteristics, they may have a negative impact on other protected characteristics.^[2] The Scottish Government is also mindful that these proposals may not impact on all members of a given group equally, for example whilst there are positive impacts identified for some trans people for others, including those who identify as non-binary, there may be no impact. Where any negative impacts have been identified, we have sought to mitigate/eliminate these. We are also mindful that the equality duty is not just about negating or mitigating negative impacts, as we also have a positive duty to promote equality.

Consultation

4. The Scottish Government carried out a consultation from 9 November 2017 to 1 March 2018 on proposals for reforming the GRA.^[3] A second consultation was carried out between December 2019 and March 2020, seeking responses on a draft Bill.^[4] Comments made by consultees on the draft Impact Assessments included with both consultations were recorded in two independent analyses.^[5] The Scottish Government has taken account of these comments when preparing this EQIA.^[6]

5. The Bill amends the GRA to introduce a new process for applying for legal gender recognition in Scotland, and new criteria which require to be satisfied by applicants to obtain a Gender Recognition Certificate (GRC). This reflects that although the Bill changes the process by which legal gender recognition can be obtained and the criteria, it does not change the effects of a GRC and the rights and responsibilities which a person has on obtaining legal gender recognition. Applicants must either have been born in Scotland or be ordinarily resident here.

6. There are a number of policy changes since the 2017 consultation. In particular:

• The Scottish Government has decided not to extend legal gender recognition to those under 16. In taking this decision, the Scottish Government has taken account of the mixed evidence in the Child Rights and Wellbeing Impact Assessment (CRWIA) on the effect of obtaining legal gender recognition of those under 16. The Scottish Government does consider that those uncertain of their gender identity should be supported. The second consultation gathered views on whether the minimum age for applying for legal gender recognition should be reduced from 18 to 16.
• The Scottish Government has decided not to extend legal gender recognition at this stage to non-binary people. The Scottish Government considers that legal recognition of non-binary people would raise a number of issues in relation to areas such as registration, data, rights and responsibilities, changes to legislation, service delivery and costs. The Scottish Government convened a Working Group on Non-Binary Equality in 2021.^[7]

7. Responses to the 2019 consultation, including comments on the draft EQIA, referred to potential consequences for women as a consequence of the reform of the GRA. Chapter 5 of the consultation discusses the potential consequences for women and the section of this EQIA which considers the protected characteristic of "sex" also discusses the potential consequences for women of GRA reform. In particular, reference is made to various exceptions in the Equality Act 2010 ("the 2010 Act") which allow trans people to be excluded in specified circumstances where this is proportionate and is to achieve a legitimate aim.

Meetings with groups/organisations

8. Subsequent to the 2017 consultation and during the 2019 consultation, the then Cabinet Secretary for Social Security and Older People met with a range of groups to gather further information and evidence.^[8]

• Women's Spaces in Scotland;
• CARE for Scotland;
• The Free Church of Scotland;
• Equality Network;
• Stonewall Scotland;
• LGBT Health and Wellbeing;
• LGBT Youth Scotland;
• Scottish Women's Aid;
• Rape Crisis Scotland;
• Engender;
• Close the Gap;
• Zero Tolerance;
• The Chair of the First Minister's National Advisory Group on Women and Girls;
• Members of the Scottish Youth Parliament;
• Women and Girls in Scotland;
• For Women Scotland;
• Equality Network and Scottish Trans;
• Stonewall; and
• LGBT Youth.

9. In addition, during this period Scottish Government officials met with:

• The Scottish Catholic Education Service;
• The Catholic Parliamentary Office of the Bishops' Conference of Scotland;
• Murray Blackburn Mackenzie.

10. After the conclusion of the 2019 consultation, the Cabinet Secretary for Social Justice, Housing and Local Government has met with:

• Stonewall Scotland
• Equality Network and Scottish Trans
• LGBT Youth
• LGBT Health and Wellbeing
• LGB Alliance
• For Women Scotland
• Fair Play for Women
• Women Voting With Our Feet
• Murray Blackburn Mackenzie
• Equality and Human Rights Commission
• Woman's Place UK
• Faith and Belief Representatives

11. During this period Scottish Government Officials also met with:

• National Records of Scotland
• Children and Young People's Commissioner
• Scottish Civil Justice Council
• Engender
• Scottish Women's Aid
• Transgender Trend
• Women Speak Scotland

12. Responses submitted by these organisations to either the 2017 or the 2019 consultations are available on the Scottish Government website.^[9]