Non-Binary Working Group: context and framing

Background

Non-binary is commonly used as an umbrella term for individuals who identify as ‘either having a gender which is in-between or beyond the two categories “man” and “woman”, as fluctuating between “man” and “woman”, or as having no gender, either permanently or some of the time (Scottish Trans Alliance (STA), ‘Non-Binary People’s Experience in the UK’, 2016 p.6)’. There is evidence of non-binary gender identities throughout history and across cultures (‘Third sex third gender’, Herdt, G. (1996). New York: Zone.).Although current limitations on data and evidence preclude an accurate estimate of the number of non-binary people in Scotland today, there is growing recognition of the need to strengthen equality for those who identify as non-binary.

In a June 2019 Parliamentary statement on gender recognition reform, the Cabinet Secretary for Social Security and Older People said the following in relation to non-binary recognition:

'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 this work was reiterated in the 2019-20 and 2020-21 Programmes for Government.

As a result, the Working Group on Non-Binary Equality (‘the Group’) was set up in January 2020, with an initial meeting planned for February 2020. Although some members of the Group were able, on a further date, to meet with the Minister for Older People and Equalities, the initial meeting was postponed, and the work of the Group subsequently put on hold as a result of COVID-19 and the consequent reprioritisation of staff across Scottish Government to undertake critical work. The work of the Group was confirmed as being able to restart in February 2021, and an initial meeting planned for 23 March 2021.

Purpose

The Group will define its own Terms of Reference and Remit, with no initial limits set on the scope or focus of the Group’s work.

The Group understands that, in a June 2019 parliamentary statement on gender recognition reform, the Cabinet Secretary for Social Security and Older People said that the Scottish Government ‘does not intend at this time to extend legal gender recognition to non-binary people’. The Group further understands that decisions on whether to action Group recommendations will lie with Scottish Ministers.

More detail on potential areas of work is at Annex A to this paper, which outlines the key priorities identified by the LGBTI organisations who sit on this Group, as shared with the Scottish Government’s LGBTI Policy Unit in April 2020.

Data and evidence

At present, there is a lack of reliable evidence in relation to the number of non-binary people in Scotland, or in relation to their needs and experiences. The most recent Scottish Census, in 2011, included a binary sex question with ‘male’ and ‘female’ as possible responses.

The UK Government’s 2018 National LGBT Survey, which received over 108,000 responses, included a Gender Identity question. Of respondents, 6.9% gave their gender identity as ‘non-binary’, and a further 0.9% gave their gender identity as ‘other’.

For the survey as a whole, more than two-thirds of respondents (68.1%) were under the age of 35. The survey may also point towards an increase in young people identifying 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.

In 2015, Scottish Trans Alliance (STA) conducted a UK-wide survey on the experiences of non-binary people, which had 895 valid responses. The subsequent Research Report notes that of those respondents, 63% identified as ‘non-binary’, although there were a significant range of terms used by participants.

Unlike the UK Government’s survey, respondents to the STA survey were able to select multiple terms to identify their gender. Respondents were also asked if they regarded their gender identity as fixed or fluid – 31% responded with ‘fixed’, 54% with ‘fluid’, and 15% with ‘unsure’. The survey also asked whether respondents considered themselves to be trans – 65% said yes, 15% no, and 20% were unsure.

Reflecting the UK Government survey, respondents to the STA survey were generally from younger demographics – 54.9% were from the 16-25 age group.

Both the UK Government and STA surveys were online-only and self-selecting. The STA survey notes that the primarily online methods of publicising and participating in the survey may have influenced the age demographics of respondents. They also note that ‘identifying as non-binary is still relatively new (within a UK context), so people who have been aware of the possibility of identifying in this way from a younger age are more likely to.’

In relation to gathering accurate data on non-binary people’s gender identities, the STA survey found that only 3.9% of respondents felt ‘always or ‘usually’ able to accurately describe their gender when filling in forms to access services.

International context

In recent years, an increasing number of jurisdictions have taken steps towards officially acknowledging the gender status of individuals whose gender identities does not fit the binary of ‘man’ or ‘woman’.

In 2012, Argentina introduced legislation that allows anyone over the age of 18 to choose their gender identity, undergo gender reassignment and revise official documents without any prior judicial or medical approval. In 2018, two people used the precedent set by this law to have their official documents changed to reflect their non-binary gender (World Report 2016: Rights in Transition | Human Rights Watch (hrw.org)).

A number of countries, including Canada, Malta and New Zealand, have introduced legislation allowing non-binary people to mark their gender with an ‘X’ on their passports and legal documents. Several countries, including Australia, Iceland, Nepal, India and Pakistan, also allow people to identify as a third gender that is neither male or female. However, given these cases are culturally and contextually specific, some scholars have noted that these examples cannot necessarily provide a blueprint for reform in the UK and have questioned the efficacy of these laws in practice (Dunne, P. 2017).

Next steps

As the Cabinet Secretary noted when she first announced this work, the Scottish Government recognises that more could be done to realise, protect and promote equality and rights for non-binary people in Scotland.

Alongside the work of this Group, the Scottish Government is also developing Trans Inclusion and Women’s Rights Guidance for policymakers and service designers, which will help those in Scottish Government and the wider public sector to collectively realise the rights of women and trans people. The guidance is intended to be explicitly inclusive of non-binary people, and will welcome the engagement of the Group as it is developed.

It is intended that this Group will consider how best to strengthen and improve equality for non-binary people in Scotland, taking account of international best practice, existing and possible future research, and the expertise and lived experience of the Group’s members. The Group’s initial output is expected to take the form of a suite of recommendations to Scottish Ministers, delivered within one year of the Group’s inaugural meeting.

Annex A

Key priorities for the working group on non-binary equality

Following the postponement of the Group’s work in March 2020, the intermediary organisations and non-binary members of the Group met virtually, following which they wrote to the Scottish Government to outline key priorities for the Group to focus on. They are:

• trans-specific healthcare – all Scottish Gender Identity Clinics (GICs) currently have waiting times of 24 months for first appointments. These will likely be even longer as a result of the COVID-19 pandemic. Too many people who attend GICs have experiences that diverge from the pathway outlined in the Scottish Gender Reassignment Protocol, with non-binary people often facing greater delays and difficulties in accessing care than trans men and trans women
• other healthcare – non-binary people also face barriers to accessing general healthcare, and can experience discrimination when doing so. This is particularly the case in primary healthcare, and when accessing mental healthcare
• data collection and equality monitoring – there is a lack of evidence about the needs and experiences of non-binary people in Scotland, as so few data collection exercises include options other than male or female to record sex/gender
• legal gender recognition – the Scottish Government has not included legal gender recognition of non-binary people in its proposed Gender Recognition Reform (Scotland) Bill. Non-binary people are also unable to amend other identity documents, such as passports or driving licences, with markers other than male or female

• young people and experiences in education – evidence suggests that more young people than older people are non-binary, and they report particular difficulties in education settings
• employment discrimination – all trans people face discrimination applying for jobs and in the workplace. Non-binary people told us in our 2015 survey that work is the hardest place in which to be “out” and reported high levels of discrimination
• access to public services – non-binary people face barriers to accessing public services and discrimination when using them. This may be particularly acute in single-sex services and crisis services