Non-binary equality action plan: equality impact assessment

Chapter 2: Non-Binary Equality and Protected Characteristics

This chapter is a summary of existing evidence on non-binary people’s equality in Scotland through the lens of the protected characteristics in the Equality Act 2010.

It is important to acknowledge that there is limited data on non-binary people in Scotland and their experiences. This EQIA is based on the current available evidence and data and is mainly drawn from Scottish sources. However, given the lack of evidence in Scotland, some comes from the UK as well as further afield. The views of those with lived experience which were gathered through the Group as well as the focus groups on the plan, during the engagement phase, are also included in this EQIA.

One of the six key themes of the plan is ‘Data and Research ‘ and we intend to improve our knowledge and understanding of non-binary people’s experiences through carrying out further research.

The analysis below takes each protected characteristic in the Equality Act 2010 and highlights the key evidence and data available in accordance with the themes of the plan. However, due to the limited evidence and data, we only cover the themes of the plan for the protected characteristic if we have enough evidence and data to do so.

Although the analysis focuses on one protected characteristic at a time, it is important to note that given the breadth of the actions in the plan, different protected characteristics inevitably intersect. Where a protected characteristic has a clear link within a specific theme of the plan, this will be highlighted.

At present, there is a lack of reliable evidence in relation to the number of non-binary people in Scotland. The Scottish Census in 2011 included a binary sex question with ‘male’ and ‘female’ as possible responses. It did not include a non-binary question.

A new question on trans status or history was added to the Scotland’s Census 2022.^[5] National Records of Scotland (NRS) will use responses to this question to produce estimates on the number of non-binary people in Scotland. As part of their user consultation on census outputs NRS proposed outputs classifications for the trans status or history variable.^[6]

Using data from Scotland’s Census 2022, we hope to be able to provide estimates on the number of non-binary people in Scotland by Summer 2024.

Data from Census 2021 for England and Wales show that 0.5% of the population in England and Wales have a gender identity that is different from their sex registered at birth. ^[7] Of those who answered that their gender identity is different to their sex registered at birth, approximately 12% identify as non-binary (0.06% of the population aged 16 years and over). If these percentages are reflective on the population of Scotland, we'd expect there to be around 3,000 non-binary adults in Scotland. Non-binary people in England and Wales were more likely to be younger, with more than 4 in 5 non-binary people being aged between 16 and 34 years (85%).

The UK Government’s National LGBT Survey, carried out in 2018, received 108,000 respondents from across the UK. Of respondents, 6.9% gave their gender identity as ‘non-binary’, and a further 0.9% gave their gender identity as ‘other’. The respondents who identified as non-binary were more likely to be younger. ^[8] The survey sample was self-selecting so these figures are not representative of the general population.

Gender Reassignment

Participation in Decision-Making

It is important that non-binary people of all ages have a voice and the opportunity to fully participate in decisions that affect their lives. The Group’s report and recommendations noted that many of the barriers were the result of non-binary people not being included in decision-making processes. This highlights the importance of non-binary people being included in decision-making especially those who are marginalised in multiple ways to ensure people have greater access to power and autonomy.

The Group’s report outlined why participation in decision-making was important to them. Sharing their lived experience of encountering significant barriers, they noted that “[i]f you are not in the room when decisions are being made, then your needs will be neither understood nor addressed”. They noted that this applies for “all marginalised groups, who are not adequately included in decision-making processes, and who do not have equal power to shape policy-making or legislation”.

Group members discussed how this impacted non-binary people who are marginalised in multiple ways, and the barriers those with multiple marginalisation would face to being part of discussions.

The Group felt the Scottish Government must “ensure that marginalised people can genuinely participate in shaping decisions that will affect their lives”.^[9]

When discussing the proposed actions in the plan in the focus groups, participants were clear that the barriers to enabling and supporting non-binary people, especially those with intersecting protected characteristics, are many, and ensuring people have the ability to influence decisions which will directly impact their lives is key. One participant noted that “if people are marginalised, they need to have their voices heard evermore in consultation, as they are missing from other areas of decision-making”.

Health Care

The Group highlighted that trans and non-binary people can wait for several years simply for a first appointment at a Gender Identity Clinic (GIC). ^[10] At the largest clinic, the Sandyford in Glasgow, people can currently expect to wait longer than 44 months for an initial appointment. Research has found that the length of waiting times meant that:

• 67% of people experienced poorer mental health
• 62% of people experienced lower self-esteem
• 58% of people felt more isolated and excluded
• 30% of people were less likely to access other services
• 29% of people self-harmed
• 13% of people attempted suicide^[11]

This research was conducted in 2016, when reported waiting times were 260 days for adults and 314 days for young people. As waiting times have significantly lengthened since then, the impact on trans and non-binary people has likely worsened.

Dissatisfaction with the provision of gender reassignment services is echoed in The Scottish LGBT Equality Report where concern regarding the distances required to travel to attend services, long waiting lists, and the inconsistency of NHS service provision across different parts of Scotland are raised. ^[12] Additionally the 2019 NHS Greater Glasgow and Clyde/NHS Lothian LGBT+ Health Needs Assessment^[13] found not only was there a long waiting time for an initial consultation, but also additional frustration and distress for people caused by:

• Long waits between appointments
• Long waits for appointments notes to be transcribed and letters sent
• Long waits for referrals, or referrals not being made
• Correspondence being addressed to previous name/gender identity, even after repeated corrections
• Being given inaccurate information/expectations of waiting times
• Various other clerical inefficiencies and errors

Stonewall’s LGBT in Britain report stated up to one in ten trans people have gone abroad for gender reassignment medical treatment. ^[14] This included buying hormones over the internet from other countries. The survey found a further 17% of trans people were considering these options. Engagement to date has indicated it is common that trans people access unregulated, online services to obtain hormone treatments. This is explained as a direct result of long waiting lists to access NHS services.

Self-medication as a result of long waiting times to access services was further evidenced by the 2019 NHS Greater Glasgow and Clyde/Lothian LGBT+ needs assessment.^[15] It stated many people waiting to access gender identity clinics opted to seek private treatment for hormones or buy hormones on the internet. It noted this had a very significant financial impact for people. The assessment observed some people who had bought hormones themselves on the internet had had problems relating to taking the wrong dosage. When subsequently accessing a clinic, they had had to be referred to an endocrinologist to correct this.

There are data gaps around non-binary people’s access to GICs. Health Care Needs Assessment of Gender Identity Services Report found a reported increase in the number of young people and non-binary people, as well as an increase in the proportion of trans people who were still at the stage of questioning their gender identity looking to access services. They also found that non-binary individuals were more likely to have negative experiences at clinics as the characteristics of those accessing services are changing, and may not be met by current services.^[16]

Scottish Trans conducted a report on non-binary people’s experiences accessing GIC’s in 2016 which found that despite GICs perhaps being one of the institutions that would be expected to have more knowledge about the diversity of gender identity, binary expectations around gender are still common in these settings.

Whilst some positive experiences and good practice were acknowledged, they noted it was clear that GICs need to improve to ensure that they are fit for purpose for non-binary people, with high numbers of respondents reporting discomfort in being open about their identity at GICs, feeling pressured to do things they didn’t want to, and encountering problems because of their gender identity or gender expression.^[17]

The Group highlighted the lack of knowledge of trans and non-binary healthcare needs among primary care providers, with many reporting that GPs often have poor knowledge, and that, while knowledge of trans people is generally low, understanding of non-binary needs is particularly lacking.^[18]

A study of long-term health conditions and healthcare experience of trans and non-binary adults found that healthcare outcomes among trans and gender diverse individuals are better when accessing a primary care provider who is knowledgeable about trans healthcare issues, and the report found a much higher preference for continuity of care than all other survey respondents.^[19]

The research shows a clear disparity between the primary care service trans and non-binary people receive and what they need. Evidence shows that trans and non-binary people have diverse needs from primary care services.

The National LGBT Survey showed that transgender respondents were more likely (84%) to have accessed or tried to access public healthcare services compared to cisgender respondents (79%) in the 12 months preceding the survey, including general healthcare services, mental health services, and sexual health services.

Whilst evidence shows trans and non-binary people need to access primary care, many do not have the confidence in the system when accessing services. A Scottish Trans report on non-binary people’s experiences in the UK shows that most reported feeling uncomfortable being open about their non-binary identity when using general NHS services, where 60% of respondents ‘never’ felt comfortable, as well as with GPs where 50% of respondents said they ‘never’ felt comfortable.^[20]

This discomfort in disclosing identity relates to the experiences of discrimination when accessing primary care services, for example the LGBT Foundation Primary Care Survey Report in 2017 found that over 80% of non-binary patients experienced discrimination or unfair treatment based on their sexual orientation/trans status when accessing GP services.^[21]

Further barriers for non-binary and trans people accessing healthcare centre on how primary care issues are perceived by providers. The Group gave the example of being referred for speech and language therapy. Whilst some trans and non-binary people can be referred for speech and language therapy via their GP, this is dependent on where you are in the country and whether your GP is willing to provide a referral. For many, this intervention can only be accessed via a referral from a GIC.^[22]

This lack of understanding of healthcare needs is shown by Stonewall Scotland’s ‘LGBT in Scotland – Health Report’ which found that one in four LGBT people (27 %), and nearly three in five trans people (59 %) have experienced healthcare staff having a lack of understanding of specific trans health needs.^[23]

40% of transgender respondents who accessed healthcare services reported a negative experience, such as specific needs ignored or not taken into account (21%), avoiding treatment for fear of negative reaction (18%), receiving inappropriate curiosity (18%), pressure or being forced to undergo a medical or psychological test (7%) or having to change their GP due to a negative experience (7%).^[24]

The Trans Mental Health study 2012 found very high rates of mental health issues among transgender people, with 88% of respondents showing symptoms of depression and 75% of anxiety compared with 20% of people in the UK general population.^[25]

NHS Scotland’s health needs assessment of lesbian, gay, bisexual, transgender and non-binary people found that both depression and anxiety was very common for trans and non-binary people with 72% of non-binary people saying they suffered from mental health issues, and that 82% of non-binary survey respondents had self-harmed.^[26]

A study by Stonewall Scotland ‘LGBT in Scotland – Health Report’ echoes these findings noting that half of LGBT people (49%) have experienced depression in the last year, including seven in ten trans people (72%). It also found that more than half of the trans people (52%) involved in the study have thought of taking their own life in the last year.^[27]

Transgender respondents also accessed mental health services more frequently (36%) than cisgender respondents (21%) but were also more likely (14%) to have been unsuccessful in accessing mental health services compared to cisgender respondents (7%).^[28]

Another study by the University of Cambridge looked at long term conditions and found that trans and non-binary adults are more likely than the general population to experience long-term health conditions, including mental health problems, dementia and learning disabilities, and to be autistic.^[29]

Whilst working access to services is clearly needed, research shows that trans and non-binary adults were less likely to be involved in decisions about care and treatment (85% compared with 93.7%). Those trans and non-binary adults with mental health needs were less likely to have their needs recognised and understood (77.6% compared with 87.3%). Fewer trans and non-binary adults said that overall their needs were met (88.1% compared with 95.2%).^[30]

The 2012 Trans Mental Health study found that over 60% of responders felt that they had to educate a health worker, and over 50% were told that the professional did not know enough about a type of trans healthcare to provide it. For nearly 30% of respondents, a healthcare professional had refused to discuss a trans-related health concern.^[31]

The national LGBT Survey in 2018 stated that 21% of trans respondents said their specific needs were ignored or not taken into account when they accessed, or tried to access, healthcare services in the 12 months preceding the survey, with 18% saying they were subject to inappropriate curiosity and 18% also said they avoided treatment for fear of discrimination or intolerant reactions.^[32]

This fear of discrimination is also shown by ‘LGBT in Scotland – Health Report’ findings which found almost two in five trans people (37%) have avoided healthcare treatment for fear of discrimination.^[33]

Legislation, Guidance and Access to Services

Scottish Trans ‘Non-binary people’s experiences in the UK’ study asked non-binary people about their experiences using services including: LGBT services, Police, GP, sexual health services, mental health services, general NHS services (i.e. hospital appointments), education (i.e. school, college, university), other public services, and charities/voluntary organisations.^[34]

The study found the most common negative experiences were 80% of respondents feeling the need to pass as male or female to be accepted, and 67% of respondents saying that they had the wrong name or pronoun used for them by mistake. 49% of respondents had been asked questions about non-binary people that made them feel like they were having to educate someone, 42% had terms used to describe gender associated body parts that made them feel uncomfortable, and 40% had heard that non-binary people were “not normal”. People also reported experiencing harassment or discrimination, with 34% having had the wrong name or pronoun used for them on purpose, 34% having experienced silent harassment, and 13% having been made fun of or called names for being non-binary.

They found in general non-binary people did not feel comfortable sharing their identities with services. Research showed that non-binary people felt comfortable sharing their identities with LGBT services, where 72% of respondents ‘always’ or ‘usually’ felt comfortable sharing.

The service where people felt the least comfortable being open about being non-binary was with the police, with 69% of respondents saying they ‘never’ felt comfortable sharing their identity.

Some responses noted that for access to services their identity wasn’t always relevant, or they were not out generally so didn’t feel comfortable notifying the service. Some people felt it was easier to present as a binary trans person when accessing services indicating that there is a perception amongst some non-binary people that binary trans identities are better understood, and that binary trans people are treated better by services.

Respondents were asked whether they had experienced physical and sexual violence when accessing services. 90% of respondents had not experienced any physical or sexual violence whilst accessing services due to being non-binary. Physical intimidation and sexual harassment were the most common things experienced by respondents, with 6% reporting having experienced these.

Respondents’ experiences of physical and sexual violence were significantly worse in public spaces. 32% had experienced physical intimidation and threats, and 35% had experienced sexual harassment because of their non-binary identity. 13% reported being sexually assaulted due to being non-binary.

Respondents were asked about inclusion and visibility and 65% of respondents felt that services were never inclusive of non-binary people through their use of imagery, language and information, with only 1% saying they felt they were always inclusive, and 2% saying they were usually inclusive. This lack of inclusion meant many were less likely to try to access services, and the vast majority felt their emotional wellbeing was impacted, with 84% feeling their gender identity wasn’t valid, 83% feeling more isolated and excluded, 76% feeling that they had lower self-esteem and 65% feeling they had poorer mental health due to the lack of representation in services.

Trans and non-binary workers are particularly under-represented in the workforce.^[35] At every stage of employment, many trans people face discrimination, bullying, harassment, prejudiced views and stereotyping, including during recruitment processes.^[36]

This has a negative impact on their employment prospects.^[37] Stonewell Scotland’s report highlighted that more than half of trans people (58%) have deliberately hidden or disguised their identity at work for fear of discrimination and one in fifteen trans employees (6%) has been physically attacked by a colleague or customer. ^[38]

Barriers and challenges to the inclusion of trans employees include lack of knowledge by employers and fellow employees, insufficient line manager confidence, stigma, practical considerations (e.g. toilet facilities, uniforms), lack of support and flexible policies.^[39] Barriers to accessing employment include feeling unable to apply to jobs because of fears of prejudice, application forms excluding non-binary identities, difficulties obtaining references and proof of qualification matching gender and new name, lack of awareness and transphobia from interview panels and feeling unable to be open about trans identity when applying for jobs.^[40]

The Group were clear on their support of services asking sex/gender questions, while also providing an option for non-binary people to be recorded. The barriers created by asking unnecessary mandatory sex and gender questions are significant as they could force trans or non-binary people to disclose their status, or go against their gender identity if posed by binary questioning.^[41] This view is supported by Scottish Trans ‘Non-binary people’s experiences in the UK’ report.^[42]

The Group also recognised the lack of non-binary legal recognition in Scotland. There is a lack of research on this subject, and the group noted that further work must be done to investigate the need for non-binary legal recognition, how it might work, and the necessary evidence to make informed decisions.^[43]

Scottish Trans ‘Non-binary people’s experiences in the UK’ report found the majority of respondents (64%) would like to be able to have their legal gender/sex recorded as something other than ‘male’ or ‘female’ on documents.^[44]

Internationally most countries around the world only legally recognise male and female on official documents, such as passports, licences, birth certificates, and other official identification documents. However, in recent years, some countries, provinces, states, and jurisdictions have begun offering non-binary and intersex individuals the choice to request a change to official documents. Usually, official documents will be marked with an “X” gender marker (rather than “M” or “F” for male or female).^[45]

The focus group supported the idea of gender/sex recorded as something other than ‘male’ or ‘female’ on documents, but also questioned the need for gender information in documentation generally, noting that companies and government bodies in many instances do not need to know people’s gender to provide services. They also had concerns about security, as whilst they would like to see updated options for gender/sex particularly in government documentation. If, for example, a digital identity service was created with these options, they would want to ensure sufficient safeguards were in place so non-binary people would not be put at risk, according to the focus groups held to discuss the action plan.

Additional security concerns were raised by focus group members around access to proposed digital services. If an individual’s gender status is recorded, they said there would need to be protections around this, and it would need to be that individual’s choice on how this would be shared, even with family members and next of kin.

The focus group also discussed the NHS data systems including the proposed review of Community Health Index (CHI) numbers^[46] in the plan. The key issue was with the binary gendered system, and the assumption through this system that all patients are cisgender.

The focus group were clear the system needs to be adaptive to the patient’s needs, as these issues do not only affect non-binary people, but trans and cisgender people too.

The Group also noted the gendering of law creates barriers for non-binary people, as it makes it less clear that they are able to access key legal rights and protections, which can make it harder for non-binary people to address discrimination and harassment in the workplace and in services. The uncertainty in the law also makes employers and service providers uncertain about their rights and responsibilities towards non-binary employees and service users.^[47]

Data and Research

There is a lack of data on trans and non-binary people in Scotland. Historically there have been no non-binary response options in Scottish Government data collection including the core surveys (Scottish Health Survey, Scottish Household Survey, Scottish Crime and Justice Survey) and the Scottish Census.

Data on trans and non-binary people including basic information such as populations, can be estimated through reports and surveys from disparate sources, however a clear picture is difficult to determine without population-level surveys. The NRS conducted a study which found a respondent need for a non-binary sex question as part of the 2022 Scotland Census. ^[48]

The study found that along with age, the sex variable is a vital input to population estimates and household projections which are used by central and local government to inform resource allocation, target investment, and carry out service planning and delivery.

This need for data also extended to gender identity. They found that reliable data sources on the size and locality of the trans population in Scotland is required to inform policy developments that will reduce inequalities experienced by trans people. The data would also be used to design and enhance public services to meet specific needs, particularly in relation to the provision of health services.

Feedback showed that since Scotland’s trans population seems to be small and spread variably across the country, the census would be a primary source to gather comprehensive, accurate information on the population.

We have started to improve our data collection. A new question on trans status or history was added to the Scotland’s Census 2022.^[49] National Records of Scotland (NRS) will use responses to this question to produce estimates on the number of non-binary people in Scotland. As part of their user consultation on census outputs NRS proposed outputs classifications for the trans status or history variable. ^[50]

Plans for outputs include making data on trans status or history available through pre-defined tables and the flexible table builder. The flexible table builder will be the main tool we use to release 2022 Census outputs. It will enable users to create their own data tables. This will increase the range of census data available to users. statistical disclosure control methods will be applied through the flexible table builder to protect individuals and households. All planned outputs are subject to our disclosure control procedure and the detail in the variable may be restricted.

NRS also plan to produce an analytical report on the trans status or history question, this will allow more detailed analysis on this topic compared to the standard outputs. More information on proposed outputs from the 2022 census can be found on the Scotland’s census website.^[51] Using data from Scotland Census 2022, we hope to be able to provide estimates on the number of non-binary people in Scotland by Summer 2024.

The recommended questions from the Chief statistician’s guidance have been widely implemented across Scottish Government surveys and data collections, including in the Scottish Household Survey, the Scottish Health Survey and the Scottish Crime and Justice Survey. ^[52] The data we gather from these collections will greatly enhance our evidence base for the non-binary population.

The focus group looked at the proposed actions and were supportive of the updates to the frameworks noting concern with intersectional evidence gaps and the need to do further research. They were also supportive of plans to publish guidance for public bodies, including recommended questions to ask, to gather information on sex and gender, noting that they did not like the option ‘prefer not to say’ when asked these questions. With a specific ask on gender identity being preferred.

Children and Young People

The key data and research which affects children and young people has been summarised below under the ‘age’ protected characteristic section.

It is useful to summarise the asks from the Group in this section. Their recommendation was for the Scottish Government to embed the needs of non-binary children, and all LGBTQI+ children, into the delivery of a Bairns’ Hoose in Scotland.^[53]

The Scottish Government’s vision of “Bairns' Hoose” is that "all children in Scotland who have been victims or witnesses to abuse or violence, as well as children under the age of criminal responsibility whose behaviour has caused significant harm or abuse, will have access to trauma-informed recovery, support and justice.^[54]

The Group noted that non-binary children, and indeed all LGBTQI+ children, can face specific barriers when accessing such crisis support including:

• Not having transphobia or rejection from family members being counted as types of violence and abuse
• Services disclosing a child’s trans or non-binary status against their wishes when sharing information between professionals and parents/guardians, which may place children at greater risk
• Encountering services and support, such as temporary foster care, that are poorly equipped to understand and support LGBTQI+ children, sometimes furthering their experiences of transphobia, homophobia, or biphobia.

The focus groups said more should be done on LGBT inclusive education as resources are available but they aren’t mandatory to teach. They said there is little specific learning on non-binary people so this should be expanded on, and teachers should have the necessary training to understand the needs of these children. They noted that further work needs to be done to ensure resources are accessible to all those who need them.

Finally, they noted that evaluation of the implementation of LGBT inclusive education with non-binary pupils would be beneficial, with specific care given to safeguarding and the impact of implementation upon the understanding and opinions of their cisgender peers towards non-binary pupils.

Sport

There is a significant lack of research on non-binary experience and inclusion in sport. Where there is any discussion of the experiences of non-binary individuals in sport, this tends to come under a broader LGBTQI+ umbrella.

Research by Scottish Trans indicates that 54% of trans people feel excluded from particular sports, or have at some point stopped participating in a sport as a result of discrimination around their gender identity.^[55] 46% of trans people active in sport report negative experiences over the preceding 12 months when asked.^[56]

Almost every third respondent (31%) felt excluded from certain sports due to sexual orientation or gender identity, a higher number than the EU total (19%). This is particularly true of football, rugby and swimming. Transgender people feel excluded more frequently overall (58%).^[57]

The majority of respondents to the Outsport Scotland Report believe that homophobia and transphobia are each a problem within sport, at 94% (homophobia) and 94% (transphobia) respectively. Homophobic and transphobic language use is widespread in sport in general, as well as in leisure activities other than sports and in professional and educational contexts.^[58]

Leap Sports Scotland set out that:

In the context of their own chosen sport, homophobic or transphobic language is witnessed by 45% of active sportspeople, 88% of whom feel attacked or discriminated against. Homophobic and transphobic language mainly occurs in team sports (62%) and at higher performance levels (58%).^[59]

The Research shows that trans and non-binary people experience discrimination at all levels, from grassroots and community sports to professional. LEAP Sports Scotland found that binary gender norms, stereotypes and presumptions that characterise many sporting communities can be a barrier, not just for non-binary and other gender diverse people, and that creating more gender-neutral or mixed teams and training groups could help to mitigate some of the gender norms and presumptions that often characterise both men’s and women’s sporting communities.^[60]

Scottish Trans research echoes this and suggests sporting bodies, and individual sports clubs, need to have clear and accessible policies about the inclusion of non-binary people within their activities, and sporting bodies, and individual sports clubs, should reduce the gender segregation of sports where this is not necessary, or take steps to ensure that non-binary people are able to participate in sports where men and women compete separately.^[61]

Some research shows that whilst trans and non-binary people share many of the same barriers to accessing sport including the misuse of preferred pronouns and names by coaches and teammates, feeling uncomfortable wearing gendered uniforms and a lack of gender-neutral spaces, some further barriers to non-binary participation can come from the lack of mixed gender sport.

As non-binary individuals’ gender identity sits outside of gender binaries that most sports are organised by, this makes it particularly challenging to participate in sport and physical activity when there is a lack of mixed-gender sport options available.^[62]

Regarding competitive sport, the research is limited on non-binary participation. However, the Guidance for Transgender Inclusion in Domestic Sport was developed following a significant and robust consultation process which involved investigating the views, knowledge, and experiences of hundreds of people with a lived experience in sport, including transgender people. This included those involved from grassroots to elite sport, and working in a variety of roles such as sports competitor, administrator, inclusion and equality officers, volunteer, coach, and sport scientist, academic or medical personnel.

To educate people on trans and non-binary needs and ensure further inclusion Scottish Trans have recommended that sporting bodies, and individual sports clubs, need to have clear and accessible policies about the inclusion of non-binary people within their activities. They should also reduce the gender segregation of sports where this is not necessary, or take steps to ensure that non-binary people are able to participate in sports where men and women compete separately.^[63]

The focus group participants echoed this stating that any changes need to take a top down bottom up approach, where trans inclusive guidance and mentality is implemented at a competitive level which can then filter down to grass roots. They noted that grassroots sports cannot move forward if they are looking up to heroes and role models who don't have to follow the same rules.

Age

The UK Government’s National LGBT Survey^[64] in 2018 found that more than two-thirds of respondents (68.1%) were under the age of 35. The survey shows that a higher proportion of young people identify as non-binary (61.1% of the respondents identifying as non-binary were in the 16-17 and 18-24 age groups, compared to 4.7% in the 45-54 age group).

Data from the Census 2021 for England and Wales^[65] showed that non-binary people in England and Wales were more likely to be younger, with more than 4 in 5 non-binary people being aged between 16 and 34 years (85%).

Due to the lack of evidence and data on older trans and non-binary people in Scotland most of this section focuses on the experiences of young people. There is also a lack of data on age and the participation in decision-making and sport therefore these themes have not been included in this section.

Healthcare

The Group noted through their lived experience, group meetings and community consultation that the view was that current transition-related healthcare system is not fit for purpose, with key issues being the “long waiting times, arbitrary assessment criteria, negative experiences at Gender Identity Clinics, and the requirement that all trans healthcare be accessed via specialist clinics and psychiatric assessments.”^[66]

Health Care Needs Assessment of Gender Identity Services Report from 2018 states that whilst waiting times for adult services had decreased during the studied time period, waiting times for young people had increased over the same time period.^[67] When research was conducted in 2016 reported waiting times for gender identity services were 260 days for adults and 314 days for young people. As waiting times have significantly lengthened since then, the impact on trans and non-binary people has likely worsened.

The report found that these changes in patient population, especially the younger trans and non-binary populations, were down to better service provision, positive changes in societal attitudes, and greater access to information on transgender issues through the internet and social media, giving more trans people the vocabulary and confidence to self-identify. Service providers and other stakeholders view this change as the trans population feeling able to present to services, rather than an increase in the underlying number of trans people.^[68]

Difficulties in accessing services have been consistently highlighted by trans representative stakeholder organisations, specifically for young people (LGBT Youth and Transparentsees). There is only one gender identity service which accepts referrals for under 17s in Scotland. This is NHS Greater Glasgow and Clyde’s Young Person’s Service at Sandyford. Sandyford accepts referrals from all Health Boards areas.

LGBT Youth Scotland’s ‘Life in Scotland’ report in 2018 showed that the majority of LGBT young people felt supported by health services. However, overall, trans and non-binary young people were the least likely to feel supported by services.^[69]

Proportion of young people who felt supported by Health Services

	A&E	Gender identity Clinics	Mental health clinics	Sexual health clinics	GP
Transgender	66%	80%	63%	75%	68%
Non-binary	81%	65%	67%	75%	57%
Gay/lesbian women	94%	92%	884%	94%	80%
Gay men	94%	95%	86%	98%	86%
Bisexual women	93%	92%	81%	85%	81%
Bisexual men	86%	78%	74%	94%	89%
LGBT overall	86%	84%	74%	83%	76%

Regarding mental health, LGBT Youth Scotland’s ‘Life in Scotland for LGBT Young People’ report in 2022 states that “[t]here was a difference found between older and younger participants, with 64% of 18+-year-olds believing they have enough information about mental health, whereas only 51% of under-18s believe they have enough information”.^[70]

In this report, 38% of participants identified as neurodivergent but this varied between transgender and cisgender participants. ^[71] Only 25% of cisgender participants identified as neurodivergent, compared to 52% of trans participants. Autistic people have an increased gender variance rate, of over seven times that of the general population, meaning they are more likely to identify as transgender, including non-binary.^[72]

The focus groups also noted that participants had experiences where young people had been misgendered when using mental health services.

The benefit of providing timely access to healthcare is well established. For example, young people who are struggling with their gender identity are at greater risk of self-harm as well as at a greater risk of lower life satisfaction, with two in five LGBT people aged 18-24 (41%) having harmed themselves in the last year.^[73]

This is further evidenced by a review of prevalence of mental health problems in trans youth, which included 15 studies from 2011-2016, which found that trans young people have increased rates of depression, suicidality and self-harm, and eating disorders compared to their peers.^[74]

Generally, age and access to health services also interacts closely with disability (addressed below) which may put older people at greater disadvantage with 46% of pension age adults identifying as disabled compared to 8% children and 19% of working age adults.^[75]

Greater literature and evidence base is required to fully evidence age-specific barriers or specific challenges to accessing healthcare for different age groups. It is noted much of this will be intersectional with other protected characteristics. Nonetheless, available evidence and literature clearly indicates the potential distress a lack of timely access to a healthcare services can have on both young people, as well as adults.

Legislation, Guidance and Access to Services

The Group’s report highlights that a key issue affecting LGBTQI+ young people is homelessness. Young people are at particular risk of homelessness as evidenced by Stonewall which found that 18% of LGBT people had experienced homelessness at some point in their lives, rising to 24% of trans people.^[76]

The Albert Kennedy Trust (AKT) found that 24% of homeless young people in the UK are LGBT, and that 69% of them will be homeless due to familial rejection, abuse and violence.^[77]

Young people can experience exclusion from services if they are determined by a local authority as being ‘intentionally’ homeless, or leaving home on their own volition. The Albert Kennedy Trust (AKT) LGBT Youth Homelessness Report found that trans young people were more likely to experience numerous forms of abuse from family members before becoming homeless, with 64% of those surveyed saying they were stopped from expressing their LGBT identity by family members before becoming homeless.^[78]

When accessing homelessness services AKT reported that 43% of trans young people said they had experienced discrimination or harassment due to being transgender from a local authority or charity. 40% also said they experienced misgendering or deadnaming.^[79]

LGBT Youth Scotland’s ‘Life in Scotland for LGBT Young People’ report presented the results of a 2022 survey of LGBT young people aged 13-25. It highlighted the significance of LGBT related matters for care experienced young people, showing that 8% of participants were care experienced.^[80]

It revealed that 7% of survey participants who came out to their families left home under negative circumstances, with 6% experiencing homelessness, and 1% becoming care experienced. For trans young people, 10% left home under negative circumstances, and 2% became care experienced.^[81]

LGBT Youth Scotland’s Recommendations for the Care Sector found that 43% of care experienced young people said they had experienced homophobia, biphobia or transphobia in a care setting, and 78% of people said they felt staff and carers didn't have the knowledge to support them.^[82]

Data and Research

The 2022 Scottish Census includes a new question which offers a textbox for people to describe their trans status, and similar questions will be used in Scottish Government core surveys. This textbox enables respondents to say that they are non-binary.

Whilst this update to the census and other core surveys will gather overarching data on trans and non-binary people, it is important to acknowledge that there will still be gaps. The Group noted whilst the addition of the text box is a step forward, further qualitative research approaches are still required as there is no specific non-binary question. The trans status questions also only applies to 16+ population resulting in an evidence gap for younger non-binary people.

This gap in evidence is shown by the ages of the responders to the UK LGBT Survey in 2018. Those aged under 35 were more likely to identify as trans men (26%) than those aged 35 or above (10%). Trans respondents aged under 35 were also more likely to identify as non-binary (57%) than respondents aged 35 or above (36%). In contrast, trans respondents aged 35 or above were three times as likely to identify as trans women (54%) than those aged under 35 (17%).^[83]

Children and Young People

The Group stated that non-binary children, and indeed all LGBTQI+ children, can face specific barriers when accessing crisis support.^[84] These include:

• Not having transphobia or rejection from family members being counted as types of violence and abuse.
• Services disclosing a child’s trans or non-binary status against their wishes when sharing information between professionals and parents/guardians, which may place children at greater risk.
• Encountering services and support, such as temporary foster care, that are poorly equipped to understand and support LGBTQI+ children, sometimes furthering their experiences of transphobia, homophobia, or biphobia.

In education, the recommendations of the Group were shaped by a paper noting LGBT Youth Scotland’s survey results about non-binary experiences, which was sent out to 20 schools they work with, largely in Edinburgh and Glasgow.

They found that non-binary young people are often required to be recorded as male or female on SEEMiS which is a considerable barrier to them participating equally at school and being perceived as their authentic selves.^[85]

They also found that non-binary young people's identities are poorly understood by teachers and staff at schools, as well as by their peers, and non-binary young people are not always well-represented in information and resources aimed at LGBT inclusion.

This evidence of lack of support within education settings is further evidenced by LGBT Youth Scotland’s research which showed that:

• 82% of transgender young people had experienced bullying in school on the grounds of being LGBT
• 68% of trans young people who had experienced bullying said that it negatively affected their educational attainment
• Only 24% of LGBT young people would feel confident reporting transphobia in school
• 27% of trans young people left education as a result of homophobia, biphobia or transphobia in the learning environment.^[86]

Research by the UK Government in 2016 on ‘Inequality among lesbian, gay bisexual and transgender groups’ in the UK found there was a lack of robust evidence on education issues in relation to transgender students and gender identity.

Whilst there was a lack of evidence, the data available showed homophobic, biphobic and transphobic bullying being a major problem in schools and in further and higher education, with heterosexism and heteronormativity continuing to be prevalent in educational institutions reinforcing feelings of alienation among LGBT students and leaving their specific support needs largely unaddressed.

They found little reliable evidence on the extent of perceived or expected discrimination, and little reliable evidence on inequalities between groups. However, there was evidence that expectations of discrimination are higher amongst transgender people than LGB people.^[87]

Disability

Due to the lack of evidence and data on disability and non-binary people, we have not included the themes of participation in decision-making, data and research, sport and children and young people in this section. There is also a lack of intersectional evidence, for example on the experiences of young disabled non-binary people or disabled people from racialised minorities.

Healthcare

In the UK Government LGBT Survey in 2018, a third (33%) of the 108,100 respondents indicated that they had a disability, whereas 14% of non-trans respondents said they did.^[88]

The Group noted that access to GIC treatment pathways for non-binary people can be considered by healthcare professionals as being more complex meaning that they experience greater difficulties and delays in accessing treatment. ^[89]

This difficulty in access is experienced more by disabled people. 98% of respondents to the Trans Lives Survey 2021 described the transition-related healthcare available on the NHS as not completely adequate, with 47% responding that it is “not at all” adequate. ^[90] A greater proportion of disabled trans people reported inadequacy of service. The study also found that disabled trans people are more likely to experience delays, with 93% having done so compared to 85% of non-disabled people.

Potential barriers to services in Scotland included the physical accessibility of GICs and geographic proximity for service users. It may be that such experiences may have changed as a result of the COVID-19 pandemic, where remote consultations have become more routine. Conversely, physical barriers addressed by increasing use of remote or online consultation platforms may present accessibility challenges for people with conditions such as anxiety or deaf/hard of hearing individuals.^[91]

This lack of understanding of trans and non-binary people’s healthcare is also evidenced in primary care settings by the LGBT Foundation Primary Care Survey Report. This^[92] research was on LGBT people’s experiences of primary care services to determine what access to general practice, dentistry, pharmacy and optometry looks like for the community. Whilst this study was centred on the experiences of LGBT people in the Greater Manchester area, the findings present a wider look at the experiences of people within the community interacting with healthcare.

The study found LGBT people often receive inappropriate treatment and advice from primary care services due to a lack of knowledge about the ways in which health needs of LGBT patients differ from the needs of heterosexual and cisgender patients.^[93]

The report found that disabled LGBT people and people from racialised minorities were more likely to experience discrimination based on their sexual orientation or gender identity compared to the rest of the LGBT community. These respondents were also less likely to feel their GP met their needs.^[94]

Legislation, Guidance and Access to Services

The Trans Lives Survey 2021 said that 27% of all respondents reported that they have experienced homelessness at some point in their lives, with a higher proportion (36%) of disabled people having experienced homelessness, compared to 21% of non-disabled people. ^[95]

This study also found that 40% of respondents experienced transphobia when seeking housing. More disabled people experienced this transphobia, with half of those surveyed who were disabled having this experience when trying to access housing (compared to 28% of non-disabled people).^[96]

The focus group said it is important to note significant numbers of the LGBTQI+ community who are also disabled when developing guidance. Guidance needs to be accessible for people with sensory impairments, for neurodivergent people and for people with learning disabilities.

The Group found that building design was a common barrier for non-binary people accessing services, and highlighted an example of the provision of more gender-neutral toilets can benefit disabled people with carers of a different gender, as well as single parents with children of a different gender.^[97]

The focus group supported a call for evidence to seek evidence and examples of barriers to accessing public spaces, but were concerned about bad faith submissions and the call not reaching the people who need to be involved.

LEAP Sport Scotland’s ‘Non-Binary Inclusion in Sport’ report highlights the intersectional issue of services not providing gender neutral facilities as toilets are often located inside gender-segregated changing rooms meaning people need to enter these areas to go to the toilet. ^[98] Often if toilets exist separate from the changing rooms, these are usually labelled either female or male, or specifically intended for disabled users.

They also noted that creating gender-neutral single occupancy changing rooms that are accessible for all would assist non-binary and disabled people’s inclusion.

The Equality Network’s ‘Tackling Transphobia in Sport’ report states that in order for sports and leisure facilities to be more trans inclusive they should clearly describe their changing room provisions, stating if there are gender neutral changing areas and what level of cubicle privacy users can expect within gender specific changing areas.^[99]

Marriage and Civil Partnership

There is very limited data on trans people with the protected characteristic of marriage and civil partnership, not only in Scotland but across the world, and even less on non-binary people’s experiences. We are therefore unable to review existing data in relation to the themes of the action plan in this section.

Scottish Trans’ ‘Non-binary people’s experiences in the UK report’ found that 14% of respondents mentioned that non-binary people also needed to be covered in anti-discrimination and equality legislation. ^[100] In particular, people mentioned the Equality Act 2010 being extended, and marriage laws being changed to reflect that someone who isn’t a man or a woman may be getting married.

It is important to acknowledge that non-binary people do not have legal recognition in Scotland and the UK as a whole, meaning non-binary people need to choose ‘male’ or ‘female’ on some documentation including marriage certificates.

Religion or Belief

There is a lack of research on non-binary people with the protected characteristic of religion and belief. We are therefore unable to review existing data in relation to the themes of the action plan in this section.

Given the lack of information on trans and non-binary people’s religion or beliefs in nationwide research, such as the census, some information can be taken from more localised studies to inform how trans and non-binary people may experience religion or belief.

Scottish Trans found that the majority of the respondents to their ‘Non-binary people’s experiences in the UK’ report said that they had no religion. This is significantly higher than the general population, with only 25% of people in England and Wales and 37% of people in Scotland saying that they had no religion.^[101]

They found that 22% of respondents described their religion or belief as ‘Other’, including 13% of respondents who described their religion or belief as ‘Pagan’, and 4% who described themselves as ‘Buddhist’ This compares to 0.4% of the population of England and Wales, and 0.3% of the population of Scotland who selected ‘Other’ religions or beliefs, and 0.4% of the population of England and Wales, and 0.2% of the population of Scotland who describe their religion as ‘Buddhist’.

The LGBT Youth Scotland ‘Life in Scotland’ survey found that 76% of participants stated that they do not have a religion or faith, 9% were Christian, 1% were Muslim, and 7% had another religion or faith not listed in the question. This data covers all respondents to the survey not just those who identify as trans or non-binary.^[102]

Sexual Orientation

Of the 1,160 self-selected trans people from Scotland who responded to the UK LGBT Survey in 2018, around a third (32.1%) identified as bisexual, a fifth (22%) said that they were gay or lesbian, 13.6% identified as pansexual, and 4.9% as queer. 10.4% said that they were heterosexual. 5.5% said that they did not know, or preferred not to say. The methodology used means respondents are drawn from a non-representative sample of LGBT people across the UK, and therefore it is not possible to generalise these findings to the Scottish trans population as a whole. ^[103]

Of the 530 self-selected respondents to the 2012 Scottish Trans survey^[104] who answered the question about sexual orientation, around a quarter identified as bisexual (27%) and another quarter identified as queer (24%). A fifth (20%) identified as straight or heterosexual. Again, this was not a random sample and so findings cannot be assumed to be representative of the trans population as a whole.

Trans respondents were much less likely to identify as gay or lesbian (23%) than cisgender respondents (68%), but much more likely to identify as bisexual (32%), pansexual (14%), ‘other’ (7%) or queer (5%). 4% reported that they did not know their sexual orientation, compared to 1% of cisgender respondents. 9% of trans respondents identified as heterosexual.^[105]

There is less data on people who identify as non-binary and how they describe their sexuality. Scottish Trans’ Non-Binary Report^[106] asked respondents how they would describe their sexual orientation. Most described themselves as queer (52.7%), pansexual (31.6%), bisexual (27.9%), or other (18.4%), which includes demisexual, panromantic or undefined. The sexuality respondents least identified with was heterosexual (4.7%).

Sex

As non-binary people’s identities fall outwith the binary ‘sex’ categories as set out in the Equality Act 2010, there is a limited scope for looking at how sex intersects with a non-binary gender identity. We are therefore unable to review existing data in relation to the themes of the action plan in this section.

The key areas where non-binary people can be considered are where societal limitations continue to perceive non-binary people through the lens of binary ‘sex’, such as legal recognition and service provision.

Healthcare was a key theme for the Group. One relevant issue was that patient data is coded to sex through CHI numbers. The Group noted that sex should be recorded relevantly in health information, and that trans and non-binary people continue to be able to update their records to reflect their lives.

They stated that sex markers linked to CHI numbers are inaccurate and there would be more appropriate ways of delivering care that involves screening. Assuming medical needs based on sex codes has an impact beyond trans and non-binary people. For example, women who have previously undergone a mastectomy may be inappropriately called for breast screening.^[107]

The focus groups acknowledged the benefits of updating NHS data systems but were concerned about changes becoming an ID database and the security implications that this may have for trans and non-binary people. They suggested this data should be protected, and would want to know how it would be used including which organisations would have access to it, if implemented.

A report by Scottish Trans found non-binary people had concerns around health care providers having accurate information about them, and why they might be required to disclose their sex assigned at birth. Without this information they found that non-binary people may not receive the correct prompts for health checks that are issued based on the gender of their records which highlights the existing system assumes people using services are cisgender. They suggest that a more flexible and inclusive system which acknowledges the reality that a person’s gender does not necessarily tell you about a person’s body would alleviate concerns around changing the way your gender is recorded with healthcare providers.^[108]

Race

There is very little evidence on race and the intersection with non-binary identities. The research available also predominantly focuses on experiences of people from racialised minorities with healthcare, and most of this research also focuses on experiences originating in the United States.

The relevant research which is referenced in the below section does show that people from racialised minorities encounter significant barriers when accessing services. These barriers are often congruent with the barriers that trans and non-binary people, as well as disabled people, experience – and when someone shares these intersectional protected characteristics their experiences are significantly more challenging.

It is notable that people from racialised minorities and disabled people “did not experience racism and ableism as separate forms of discrimination extraneous to transphobia but instead these factors were compounded with transphobia”. The results suggest that being a person from a racialised minority and/or disabled “may be linked to worse experiences of and a heightened impact of transphobia itself”, compared to their non-disabled, non-racialised minority counterparts.^[109]

Trans and non-binary people were particularly likely to speak about suicidal thoughts, although these tended to subside after transition. Those especially susceptible to suicidal thoughts included those growing up in cultural or religious groups who were not accepting of LGBTQI+ identities. Asylum seekers were especially likely to have attempted suicide. The prevalence of suicide attempts was highest among trans masculine and non-binary people, with nearly half of respondents in these groups saying they had made a suicide attempt.^[110]

Further research which does not focus on healthcare is sparse.

An older piece of research, Equality Network’s ‘Minority Ethnic LGBT people in Scotland’ report shows that there was a lack of intersectional research which considers how someone’s ethnicity and gender identity can interact. ^[111] They did find that people who are LGBT and from a minority ethnic background may often feel apart from, rather than a part of, both their LGBT and ethnic communities which can lead to feelings of isolation, low esteem as well as confusion over identity. Some can also be in a position where they feel that they do not belong to either the LGBT community or their minority ethnic community and are forced to express one part of their identity at the expense of the other.

The limited data on trans and non-binary people from racialised minorities can be found piecemeal through additional areas of research, key findings being:

• 27% of all respondents to the Trans Lives Survey 2021 reported that they have experienced homelessness at some point in their lives, rising to 35% for people from racialised minorities and disabled respondents.^[112]
• 69% of racialised minority respondents reported experiencing transphobia from their line manager at work, and reported consistently higher rates of experiencing transphobia from colleagues (88% compared to 73% of non-racialised minority people), friends (81% compared to 69% of people from racialised minorities) and family (95% compared to 84% of people from racialised minorities).^[113]
• People from racialised minorities are more likely to report frequent experiences of transphobia while playing sports. 14% reported experiencing transphobia ‘every time’, and a further 20% reported experiencing it ‘frequently’ (compared to 5% of non- racialised minority people experiencing it ‘every time’, and 12% experiencing it ‘frequently’).^[114]

Pregnancy and Maternity

There is a lack of evidence on pregnancy and maternity for non-binary people in Scotland.

Regarding fertility preservation, there is some evidence in the Group’s report and Equality Network’s ‘Trans People’s Experiences of Reproductive and Fertility Services in Scotland Study’ which looked at the qualitative experiences of 146 trans people in Scotland. ^[115]

These data sources show the protected characteristics most affected by these issues are non-binary people who were assigned female at birth, in particular younger people who are considering or beginning a transition journey.

It found that non-binary respondents who had been pregnant said their sexual orientation or gender identity had affected their experience of pregnancy. Whilst the respondents who had been pregnant as part of the survey were small in number, there were notes of dissatisfaction when using pregnancy services with some respondents saying they had been misgendered, and someone had been told they couldn’t be trans because they were pregnant.

Research found that trans and non-binary people encountered challenges when breast or chest-feeding. The research stated that ‘such challenges can include increased gender dysphoria, ‘outing’ oneself as trans during breast/chest-feeding, as well as misgendering and experiencing discrimination from healthcare professionals.”^[116]

Research indicated that fertility preservation is often poorly-handled for trans and non-binary people. Some clinicians in Gender Identity Clinics can be very focussed on fertility preservation, particularly for young trans and non-binary people, which leads to unnecessary delays in accessing other medical interventions.^[117]