Gender Recognition Reform (Scotland) Bill: equality impact assessment

Older people particularly those who are longer term transitioned may be able to apply without having to gather documentary evidence of their transition that they may no longer have to hand.

People aged 16 and 17 would be able to apply.

Some religious bodies may have concerns on societal or doctrinal grounds to introducing a new system for obtaining legal gender recognition.

The Scottish Government appreciates that some religious bodies may be opposed to the concept of legal gender recognition. There are protections in the Equality Act 2010 outlined below for the interests of religious bodies.

However, as outlined in the consultation, the Scottish Government considers that a gender recognition system is required in Scotland for both policy reasons and to comply with the European Convention on Human Rights.

Other religious or belief bodies may, of course, support the concept of legal gender recognition.

There are exceptions in the Equality Act 2010 which relate to occupational requirements and religious requirements.

Paragraph 2 of schedule 9 of the 2010 Act relates to religious requirements, and covers a range of employment and office holders in organised religion, such as ministers of religion and some lay posts that promote and represent religion. If the criteria are met, it is possible to refuse to employ a trans person in these posts.

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.

Given the provisions of the 2010 Act, we have ticked the "none" box.

A number of respondents to the consultations raised concerns about the implications of legal gender recognition for women.

Concerns included:

• access to women's safe spaces;
• risk of abuse;
• women's sports;
• intimate medical care;
• the accuracy of statistical information in areas such as crime recording or equality monitoring;
• freedom of speech.

The Scottish Government is of the view that there is lack of evidence that including trans women in women-only services and spaces has negative impacts. In line with good practice the Scottish Government will keep this EQIA under review, and will consider any emerging evidence, both positive and negative in relation to this characteristic.

The 2010 Act has a number of specified 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. Organisations and service providers can, when appropriate, make use of the exceptions in the 2010 Act to exclude trans people. However, the exceptions have to be used in a proportionate way, and to achieve a legitimate aim.

On sport, section 195 of the 2010 Act contains provision allowing, in certain specified circumstances, restrictions on trans people participating in sport to be imposed if necessary to uphold fair competition or the safety of competitors.

On single sex services, the 2010 Act allows women-only services and allows services to exclude trans women in certain specified circumstances 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.

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 to balance the needs of all parties: the trans person; other users of the service and staff.

On data, the Scottish Government has established a working group on sex and gender in data.^[55]

On freedom of speech, the Scottish Government is fully committed to this and there are provisions in the European Convention on Human Rights to protect freedom of speech.

Given the various provisions in this area, we have ticked the "none" box.

Respondents to the first consultation made a number of comments in this area, including suggestions that:

• gender non-conforming children are being encouraged to transition when they would otherwise grow up to be lesbian or gay;
• gay and lesbian people are coming under increasing social pressure to change their gender rather than to live as gay or lesbian;
• lesbians may be accused of transphobia if they refuse to enter sexual relationships with trans women;
• when lesbian organisations or advocacy groups are joined by trans women, trans issues often take priority.^[56]

On children, the Scottish Government has concluded that legal gender recognition should not be available to those under 16.

On lesbian and gay people, the Scottish Government considers that people should be able to live as lesbian and gay. This Government promoted the Marriage and Civil Partnership (Scotland) Act 2014 through Parliament. A key reason for promoting that legislation was to make it clear that same sex relationships have the same standing in society as mixed sex relationships.

On relationships, Government does not lay down who a person should enter into a relationship with. That is a personal matter for the couple.

On organisations, the rules in the Equality Act 2010 on membership and access to a benefit, facility or

service, do not apply to associations with under 25 members^[57]. In addition, there is an exception which allows an association to restrict its membership to persons who share a single protected characteristic.^[58]