Non-binary equality action plan

Section 3 - Setting The Scene

Background

In a June 2019 parliamentary statement on gender recognition reform, the then-Cabinet Secretary for Social Security and Older People said:

"I do not intend at this time to extend legal gender recognition to non-binary people but we recognise the need to address the issues that non-binary people face. I intend to establish a working group to consider possible changes to procedures and practice and what we can learn from best practice internationally as well as from within Scotland and the rest of the UK."

The commitment to undertake work to improve non-binary equality was reiterated in our Programmes for Government and the Bute House Agreement.

The Working Group on Non-Binary Equality (‘the Group’) first met in Spring 2021 following delays due to the pandemic. It was independently chaired and composed of key stakeholder organisations, academics, and non-binary people. Officials from the Scottish Government Equality and Inclusion Division provided secretariat support and facilitated meetings but were not members.

The Group published its report and recommendations in March 2022 which included 35 recommendations to improve the rights and wellbeing of non-binary people in Scotland. The recommendations spanned three categories: healthcare; data and law; and access to services.

The Scottish Government issued its response to the Group’s report and recommendations in July 2022, accepting or partially accepting 24 out of 35 recommendations and committing to considering eight recommendations further. Three recommendations were declined due to not being achievable or deliverable. Decisions on the recommendations that we committed to considering further have now been made and can be found in Appendix 1.

International Context

The concerning rise of anti-LGBTQI+ movements in Europe and the UK threatens to undermine the progress made towards achieving equality and human rights for all individuals, regardless of their sexual orientation or gender identity.

Despite progress being made across Europe in recent decades towards equality for LGBTQI+ people (including those non-binary people who identify as part of the wider trans community), there continues to be a “marked increase in hate speech, violence and hate crime against LGBTI people, communities and organisations”.^[5]

The Council of Europe Parliamentary Assembly highlighted that individual attacks on LGBTI people across Europe have occurred among a broader context of continued homophobia, biphobia, transphobia and interphobia which seeks to remove the human rights of LGBTI people.^[6]

The Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity (IE SOGI), Mr Victor Madrigal-Borloz, visited the United Kingdom between 24 April to 5 May 2023. In his preliminary report, he commended Scotland’s progress on LGBTQI+ equality, particularly referencing the development of this plan and our work to advance equality for non-binary people. However, he also raised concerns about “increased bias-motivated incidents of harassment, threats, and violence against LGBT people”, attributing this to the “toxic nature” of ongoing public debate of these issues.^[7]

The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) also reflected similar concerns to Mr Madrigal-Borloz in its 2023 Rainbow Europe country rankings. These ratings saw the UK move down from 14th to 17th place in the rankings of European countries based on the legal and policy situation for LGBTQI+ rights in each country.^[8] ILGA attributed this to areas of concern including bias-motivated speech, data collection, education and health.^[9]

Scottish Context

It is important to consider the wider context in which we are taking this work forward, at a time when communities face many severe challenges such as the cost of living crisis and recovery from the COVID-19 pandemic; crises which have been shown to more severely affect groups of people who were already facing inequality.^[10] The current political climate is also challenging for trans and non-binary people, with LGBTQI+ equality organisations reporting that the increase in negative discussions of LGBTQI+ issues in daily life and in the media is having notable damaging effects among the LGBTQI+ community.^[11]

The Scottish Government is committed to advancing equality for the LGBTQI+ community and has several key priorities, including the commitment to end conversion practices; work to improve gender identity healthcare and mental health services; the planned introduction of the Human Rights Bill; and the overarching commitment to continually improving the mainstreaming of equality across government.

LGBTQI+ Equality

We continue to work with third sector equality organisations to ensure that the voices of those with lived experience can help to improve outcomes for LGBTQI+ communities across Scotland. We are funding a range of projects to tackle inequality and realise rights for LGBTQI+ people across all areas of Scottish life.

We provided funding of over £3 million to organisations working to promote LGBTQI+ equality in Scotland for 2021-2024 through the Equality and Human Rights Fund.

Ending Conversion Practices

We have committed to develop a Bill on ending conversion practices for both sexual orientation and gender identity, which will be as comprehensive as possible within devolved competence. Conversion practices seek to change or suppress a person’s sexual orientation and/or gender identity. They are damaging and harmful acts that violate the human rights of those who are exposed to them. We know the serious harm these practices cause, and there is no place for them in Scotland. There is no credible evidence to suggest that conversion practices can change a person’s sexual orientation or gender identity.

We are also developing a package of non-legislative, supportive measures to help end conversion practices and support survivors, to sit alongside any future legislation. So far, we have provided funding to LGBT Health and Wellbeing to provide a helpline to support victims and survivors of conversion practices, which is now in operation. Ensuring the helpline service was established prior to the Scottish Government’s consultation on legislative proposals was considered essential as the process can be traumatising for victims and survivors.

Gender Recognition Reform

The Gender Recognition Reform (Scotland) Bill was passed by the Scottish Parliament on 22 December 2022. The Bill improves the process for obtaining a Gender Recognition Certificate in Scotland, removing barriers that currently prevent some trans people from obtaining legal gender recognition, while ensuring it continues to be a substantial and significant process. The Bill does not provide for non-binary legal recognition.

The Bill was prevented from proceeding to Royal Assent by an Order under Section 35 of the Scotland Act 1998, made by the Secretary of State for Scotland on 17 January 2023. The Scottish Ministers have challenged the Order through a judicial review. Legal proceedings are ongoing.

Gender Identity Healthcare

Following commitments set out in the Bute House Agreement, reiterated in the 2021-2022, 2022-2023 and 2023-2024 Programmes for Government, in December 2021 the Scottish Government published a Strategic Action Framework for NHS gender identity service improvement. This set out a series of commitments which we are currently progressing with NHS Scotland and other stakeholders.

Mental Health

We published a new Mental Health and Wellbeing Strategy jointly with COSLA in June and accompanying Delivery Plan in November 2023. The Strategy is evidence-based, informed by lived experience, and underpinned by equality and human rights. It focuses on outcomes and is driven by data and intelligence. The scope of the Strategy is wider than our previous work in this space, with an increasing focus on wellbeing and prevention. We have also considered how the Strategy can take account of social factors and inequalities that may impact a person’s mental health and wellbeing. The Strategy sets out a clear vision for a Scotland, free from stigma and inequality, where everyone fulfils their right to achieve the best mental health and wellbeing possible.

The Delivery Plan sets out actions that will help us make progress towards our vision, priorities and outcomes. It has equalities and human rights at its core, recognises the importance of taking a trauma-informed approach, and is informed by lived experience. As a cross-government document it reflects key work going on in other portfolios such as the Non-Binary Equality Action Plan.

Human Rights Bill

We will introduce a new Human Rights Bill during the current 2023-24 parliamentary year, following a public consultation which closed on 5 October 2023.

The Bill will give effect to a wide range of internationally recognised human rights – belonging to everyone in Scotland – and strengthen domestic legal protections by making these rights enforceable in Scots law, within the limits of devolved competence. The Bill will include provision to ensure equal access for everyone to its substantive rights, including LGBTI people. There is no hierarchy of rights – all human rights, for every single person, are equally important. Equality is a fundamental principle embedded in all human rights treaties.

Hate Crime

The Scottish Government published a new Hate Crime Strategy in March 2023, which sets out our vision for a Scotland where everyone lives free from hatred and prejudice and where our communities are empowered, inclusive and safe. The strategy makes a number of commitments, including ensuring improved support for victims of hate crime, improving data and evidence and developing effective approaches to preventing hate crime. It will also support implementation of the Hate Crime and Public Order (Scotland) Act 2021. We will soon publish a delivery plan setting out our immediate and longer-term activity in support of the strategy’s commitments, and we are committed to supporting a range of on-going and participatory engagement to inform every stage of this.

Current hate crime law includes protection for non-binary people as part of the definition of transgender identity. However, the Hate Crime and Public Order (Scotland) Act 2021, which will come into force in early 2024, makes this clearer by updating the definition of the transgender identity to explicitly include reference to non-binary people. The Act also provides for new ‘stirring up of hatred’ offences covering all characteristics protected in the updated legislative framework, including for transgender identity, sexual orientation and variations in sex characteristics.

Inclusive Education

We continue to support the use of guidance on Supporting Transgender Young People in Schools published in August 2021 to ensure a safe and supportive environment for all pupils. We are also committed to delivering the remaining recommendations of the LGBTI Inclusive Education Working Group to ensure LGBT inclusive education is embedded right across the curriculum, to promote equality, reduce bullying and improve the educational experiences of LGBT children and young people, including those who are trans and non-binary.

Mainstreaming Equality

We are committed to continually improving how equality is mainstreamed in Scottish Government – meaning how it is built into everything we do, every day. We engaged with our key equality and human rights stakeholders, including a group of LGBTQI+ equality organisations, to help shape the work to develop a new mainstreaming strategy. It is hoped that the next iteration of the draft strategy will be ready for further consultation towards the end of 2023, with the aim of implementing the strategy in 2024.

The Equality and Human Rights Budget Advisory Group is a non-statutory advisory group convened by the Scottish Government and are responsible for providing strategic advice on equality budgeting processes. Alongside the Scottish Budget 2023-2024, we published an Equality and Fairer Scotland Statement. This set out how the government assessed the impact that the budget makes to equality and fairness, and how these considerations have influenced our spending decisions.