Non-Binary Working Group - legal recognition and gendered law subgroup minutes: October 2021

Attendees and apologies

Attendees:

• Dr Ben Vincent, The Open University (Chair) 
• Oceana Maund, Scottish Trans
• Megan Snedden, Stonewall Scotland
• Vic Valentine, Scottish Trans 
• Sarah Anderson, LGBT Youth
• Dr Carolynn Gray, University of the West of Scotland
• Katrina Mitchell, LGBT Health and Wellbeing
• Non-binary community members
• Peter Hope-Jones, Gender Recognition Unit

Secretariat:

• Paul Sloan, Equality Unit, Scottish Government
• Chloe Coldwell, Equality Unit, Scottish Government

Items and actions

Welcome and introductions

The Chair welcomed any questions from the floor or any topics to be raised as there was no formal agenda to the meeting. The group reflected on the lack of Non-binary legal recognition and identified it as a huge gap in the working group’s recommendations. They agreed this meeting would be an important opportunity to discuss the significance of this, even if it did not lead to formal recommendations or solutions regarding legal recognition in the short term. 

The ability this subgroup has to make change was discussed as a means to open the meeting. It was decided that it is important for discussion of any topic to be allowed, even if there are limits on what can be actioned, as this leaves options open in the future and begins discussions to be picked up again further down the line.

Process of achieving Non-binary legal recognition

The group discussed the possibility of putting forward formal recommendations based on the legal recognition of Non-binary people with some members strongly in favour of doing so. Scottish Government officials clarified that the upcoming Gender Recognition Reform Bill does not include provision for legal recognition for non binary people and cannot not do so without delaying the other reforms in the Bill. However, the group are free to put forward recommendations regarding legal recognition and are free to decide their actions and discussions. The group is aware that making a recommendation based on legal recognition is well within the remit of the working group but they also understand ministers may not act on this recommendation. 

Some members suggested that the group must also focus on the short term as these may be recommendations that can be actioned more quickly. One member suggested it would be more meaningful to have the Scottish Government commit to doing the work leading towards and scoping out the process of reaching Non-binary legal recognition and achieving this target within X amount of years, with 5 years being suggested. 

The group agreed that it would be a large but not necessarily complex legal task, and appreciated that this realisation removes one of the initial barriers and anxieties faced in working towards Non-binary legal recognition.

It was reinforced that achieving Non-binary legal recognition would not erase space for women in the law and discussed misogyny as an example of laws relating specifically to women. The group understood the possible delicate nature of the topic and the caution necessary when approaching the widening of the scope, instead of taking gender out of law, especially in the media and they want to avoid possible misrepresentation in media and social media regarding this sensitive topic. 
Members of the group state they are not in favour of de-gendering the law, but creating more fair and equal legal standing for people across Scotland by expanding legal recognition of gender.

The group argued that by drafting recommendations the group should not focus only on counteracting any ideas that may be perceived negatively by the public but also include the potential positives. 

The group discussed potentially building in post-legislative scrutiny to address concerns and explore how the bill may be improved. They also expressed caution about pushing too soon for a review on Non-binary legal recognition as the group may get stuck on interim steps, making the overall process and larger goals take longer. This process would depend on the groundwork and understanding what these interim steps would be and how to do work in advance to mitigate this.
The group feels legal recognition will improve many other processes such as marriage for Non-binary people across Scotland and this is the start of improving life for Non-binary people in Scotland. Community members felt achieving legal recognition should not be difficult as Scotland would not be the first country to have achieved this with 13 other countries already having done so. The group highlighted that 5 years in a legal sense is not long, but for individuals this feels like a long period of their lives. 

One member stated that Non-binary legal recognition may benefit from being framed as a political opportunity to show strength in international leadership- there is an opportunity for Scotland to do go down in history.

One member proposed moving away from framing legal recognition as disadvantaging men and women but as attractive in the ways that it creates a more inclusive society. The group agreed with this and said that these proposals would be inclusive and benefit society as a whole and every gender.

It was highlighted that legal gender is not required under the Equality Act 2010 and that there is often an historical assumption that this is the case.

Adapting current law and gendered language

One member highlighted the need to recognise the moral imperative that the rights of a minority group not be for the majority to decide and the responsibility for the rights for this minority should be with leaders. 

One community member emphasised the need to highlight that this expansion of the law to include Non-binary people will not erase the identity of a majority in society but, instead, add to the law- avoiding the controversy seen recently in the media. One member stated that a de-gendered law may be appropriate for society as a whole in specific contexts but not in others and this must be discussed. 

The group believes that legal changes would have positive ramifications across society, specifically for gender minorities and women and the group is keen to highlight this instead of solely counteracting the possible controversies. This should be fed back to ministers with examples of positives. One member highlighted the recommendation to future proof the law in an inclusive way instead of further entrenching binary gender in the law. The group agreed and understood this work must both deal with existing law as well as preventing further non-inclusive legal process in the future. This would create a more inclusive best practice moving forward, according to the group, with gendered terms being used only where necessary. Two members highlighted success stories such as the gender neutral terms used in domestic abuse laws despite victims overwhelmingly being women in order to protect everyone. 

The group agreed that it would be beneficial to commit to a consultation on the impact on transgender and non-binary people of future legislative wording.

Identity documentation

Some members believe it would be positive to not legally record gender and have discussed the possibility of “legal sex” not being recorded. One member mentioned the use of ID documents such as the more subtle gender codes currently on drivers licenses. They would like recommendations to be made about this and limit or remove the need for titles in day to day documents and interactions. 
The group agreed Mx as a title should be more widely used if titles are proved necessary. 

Some members of the group are happy for gender data to be captured for the use of certain services but not overtly printed on membership cards for example. The group would like to explore titles becoming optional on forms. One member raised that Non-binary people can be made to feel unsafe by gender markers on passports and would like to query whether Scottish Government can address this. 

A further issue that comes from the changing of gender on a passport are the mismatch of other documents such as birth certificates. The group acknowledge that this may be outwith the devolved powers of the Scottish Government. It was agreed however that it has been helpful to have this discussion as a reminder that reserved issues are important. However, these issues could be considered within the context of the Gender Recognition Act.
The group acknowledged the use of non-binary categories in Scottish Athletics and appreciated that the next generation will feel included in a sport in a way that previous generations have not experienced.

Closing remarks

The Chair was happy for any points to come from those who did not make the meeting to come to them by email and for any group members to contribute points to them privately when concerned about sensitivity or privacy.

Draft recommendations

The recommendation was that the Scottish Government commits to starting the process of scoping out how it would achieve non-binary legal recognition within the next five years.