The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment Regulations 2022 and The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 2) Regulations 2022: equality impact assessment

Gender Re-assignment

Background

As of May 2018, around 0.5% of the population of Scotland (24,000 people) were estimated to be transgender.^[131]

Tran's people suffer disproportionately from mental health conditions. A systematic review concluded that they were twice as likely as the general population to take their own lives, and that a lack of access to health care places particular pressure on trans communities.^[132] A 2020 review of literature on trans people and loneliness found that trans people often report higher levels of loneliness than the general population. It also found that belonging to communities of people who face similar challenges has a positive psychological impact on trans people's wellbeing.^[133]

Differential impacts

Positive impacts

Socialisation is important for many trans people and is essential in maintaining their mental health and wellbeing. Therefore, if the policy objective is achieved and the risk of transmission is reduced, which in turn allows higher risk settings to continue to operate as an alternative to closure or more restrictive measures, Covid Status Certification could positively impact trans people as it supports their ability to socialise.

Negative impacts

Many trans people may be known by different names, pronouns, and genders by different people, institutions, and databases at various points in their lives. If these changes have not carried across all data sets, people may have different names and genders on different healthcare databases, which stakeholders have advised can cause data flow and interoperability issues. Stakeholders have also informed us that in a few instances entire health care records have been deleted and a new profile created when an individual has asked for their name or gender to be changed on NHS records.

When registering on the App for the first time, the user needs to verify their identity before they can access their health records. This is done using biometric identity verification in the form of facial recognition software which compares the photo in a person's ID with a live photo or video.

This could present a number of problems for trans people. We know that LGBT people (and especially trans people) are less likely to have valid ID and may therefore find it more difficult to verify their identity on the App. A joint survey of LGBTQ+ people run by Stonewall and LGBT Foundation found that nearly a quarter of trans people (24%) did not have access to usable ID, and 96% had experienced at least one barrier to obtaining appropriate ID ('usable' = where the photo looks like them and the personal data matches their name and gender. Out of date ID is still 'usable' for the purposes of the survey). On types of ID specifically, the survey found that only 54% of trans respondents had a useable passport, and only 53% had a usable driving licence.^[134]

For those who have no ID and are therefore unable to register with the App, they will still have access to the paper alternative, as this can be posted to the address held on health databases. In addition, ID is not required to register a negative test result and so record of a negative test – either an SMS or email – could also be used.

If they do have ID, trans people may then encounter other issues relating to the verification process. The biometric identification software will compare the photo on the ID with a real time photo or video of the individual. For some trans people their photo could look different to their current appearance for a number of reasons, including that they are wearing make-up, they have taken hormones or undergone facial surgery. This may mean that the software is not able to automatically verify the person's identify. Gender and racial biases within facial recognition software are known in the technology industry and stakeholders highlighted that minority ethnic (ME) communities and trans people often have lower rates of automatic verification with this type of software, and stated that this could be particularly true for trans ME people.^[135] Jumio, the company providing the software, works to minimise demographic bias in their AI algorithms by using large and representative data sets and training its AI on real-word production data

After the biometric verification check, a last barrier for trans people is that if the individual's details on their ID differs from those on their medical records, they might not be able to register their account. Stakeholders have informed us that trans people often have turbulent interactions and relationships with health care services, so if Covid Status Certification creates the need for increased interactions then it could potentially cause additional anxiety and distress.

Once an account has been created, stakeholders have highlighted the risk that Covid Status Certification could lead to discrimination and distress if a user's name is displayed on the App or Certificate. For example, if someone's name on their medical records – and therefore their Certificate – is different to the name that they use with their friends, family and others, this could lead to their transgender identity being unintentionally disclosed.

If a trans person cannot verify their identity on the App, requests a paper Certificate, and the document is posted to their family home, this could unintentionally reveal their trans status to family members. LGBT young people are already fearful of disclosing their identity – 'coming out' – and 77% of young people believed their sexual/gender identity was a causal factor in their rejection from home.^[136]

The UK Government Equalities Office LGBT Survey 2017 found that 24% of all respondents were not open about identifying as LGBTQIA+ with any family members that they lived with (excluding partners).^[137] For some people, it is likely that concerns around levels of anonymity in the contact tracing system may discourage them from either engaging with the system at all or, if they do, declaring certain close contacts. In line with data protection rules and the Caldecott principles^[2], the contact tracing system is entirely confidential and individuals are reassured that their personal information will not be shared with close contacts, employers or others without prior consent, helping built trust with individuals concerned about disclosing personal contacts generally.

The domestic App has functionality to hide and display a person's name. Individuals can create separate profiles for international and domestic use using different email addresses. If an individual wishes to use a different name domestically, and has photo ID in that name, they can create one account for international travel, which aligns with the details on their passport, and one account for domestic use, which aligns with their preferred name. The App can only host one account at a time so the individual will have to log in and out to use the different accounts.

The inclusion of testing as an alternative to vaccination reduces the risk that a person's transgender identity is unintentionally disclosed as any name can be registered with the testing portal and there is no verification of name or identity. So an individual can use their chosen name even if they are not registered with their GP under that name or do not have corresponding ID.