Non-Binary Working Group minutes: September 2021

Attendees and apologies

Attendees

• Dr Ben Vincent (Chair)
• Oceana Maund, Scottish Trans Alliance
• Vic Valentine, Scottish Trans Alliance
• Sarah Anderson, LGBT Youth Scotland
• Megan Snedden, Stonewall Scotland
• Katrina Mitchell, LGBT Health and Wellbeing
• Non-Binary Community members
• Dr Carolynn Gray, University of the West of Scotland
• Dr Peter Dunne, University of Bristol
• Lyndsay Wilson, National Records of Scotland
• Matthew Deary, Nationals Records of Scotland
• Jon Hunter, Equality and Social Justice Analysis, Scottish Government
• Roanna Simpson, Equality and Social Justice Analysis, Scottish Government
• Paul Matthews, Sex and Gender Data Working Group, Scottish Government
• Simon Stockwell, Family Law, Scottish Government
• Peter Hope-Jones, Gender Recognition Unit, Scottish Government
• Joe Smith, Mainstreaming and Strategy Unit, Scottish Government

Secretariat

• Catrina Steenberg, Equality Unit, Scottish Government
• Caroline Moffat, Equality Unit, Scottish Government

Apologies

• Eilidh Dickson, Engender
• Paul Sloan, Equality Unit, Scottish Government
• Laurie Donaldson, Equality Unit, Scottish Government
• Alison Stout, Scottish Household Survey, Scottish Government

Items and actions

Welcome and introductions

The Chair welcomed attendees to the third meeting of the Group and invited introductions from each Group member in turn. The aim of this session was to facilitate a discussion around evidence and data regarding non-binary people, in order to inform the recommendations to progress non-binary equality to be submitted to Ministers in March 2022.

 Note of last meeting (16 June 2021)

The previous minutes were agreed as accurate.

Equality Evidence Strategy 2017-2021 and the Equality Data Improvement Programme Project

There was an update on the Equality Evidence Strategy 2017-2021 and the Equality Data Improvement Programme Project. The purpose of the Equality Evidence Strategy is to outline the general approach to strengthening Scotland’s equality evidence base and fill in the gaps in data and evidence. Some work undertaken in this period includes:

• regular updates to the Equality Evidence Finder
• ongoing improvements to National Performance Framework indicator data across different equality groups
• the publication of the Gender Equality Index last year 
• ‘spotlight’ evidence summaries for the First Minister’s Advisory Council on Women and Girls
• publication of Equality Budget Statements alongside Scottish Budgets
• publication of Scottish Social Attitudes Survey modules on Intra-Household Distribution of Resources and Attitudes to Violence Against Women
• publication of Scottish data from the ONS Time Use Survey focusing on gender

The aim is to publish an updated Evidence strategy late next year, which will be shaped by the new Equality Data Improvement Programme (EDIP). EDIP is a multi-phased programme of work aims to strengthen Scotland’s equality evidence base, which will in turn enable policy makers to develop sound and inclusive policy. It has two key aims: sharing learning and good practice and data development, which seeks to increase the availability of robust equality and fill data gaps. An audit is currently being carried out within Scottish Government analytical areas focusing on what protected characteristic data is collected and published in key datasets to produce official or national statistics. With respect to Non-Binary people there is planned lived experience wok focusing on why people from minority groups, including Non-Binary people might be reluctant to get involved in research and what can be done to support them. It is hoped the SHS question regarding gender there will be scope to get more information. Also the Census is a great source of data.

There was discussion over whether the current Equality Evidence Strategy rolls over. The existing strategy has now expired and the new improvement programme project will run from 2022. Trans people will be represented, hopefully more robustly than previously. 

The three main Scottish Government household surveys (Scottish Household Survey (SHS), Scottish Health Survey (SHeS), and Scottish Crime and Justice Survey (SCJS)) are combined into a core dataset with a sample of around 20,000 households. Covid-19 has impacted on the data collection for these surveys but it is hoped that 2020 and 2021 telephone survey data from SHS and SHeS will be able to be combined and published despite a smaller sample size. It is hoped that the three surveys will be able to realign in approach and that the core sample size will be closer to pre-pandemic levels for 2022. From 2022 all three surveys will use the sex question and the trans status questions as advised by the sex and gender working group guidance.

It was commented that the attitudes to discrimination and positive action module of the Scottish Social Attitudes Survey to be postponed twice because of Covid.

Scottish Household Survey (SHS)

A table showing gender identity by year for adults from the SHS was shared on the screen. This showed a boosted sample over Scotland as a whole.

Adults

Gender	2012	2013	2014	2015	2016	2017	2018	2019
Man/boy	47.93%	47.95%	48.02%	48.06%	48.10%	48.10%	48.13%	48.13%
Woman/girl	52.07%	52.05%	51.98%	51.94%	51.90%	51.90%	51.84%	51.81%
In another way	N/A	N/A	N/A	N/A	N/A	N/A	0.01%	0.04%
Refused	N/A	N/A	N/A	N/A	N/A	N/A	0.02%	0.02%
All	100%	100%	100%	100%	100%	100%	100%	100%
Sample size	9,890	9,920	9,800	9,410	9,810	9,810	9,700	9,780

It was regarded as positive that more people identified as non-binary in 2019 (0.04%) than refused to answer.

It was commented that the question about gender identity was rated better than the equivalent question in other surveys, when tested with focus groups of trans people. However, there was some confusion about the terms ‘Man/Boy’ and ‘Woman/Girl’, which might limit how some people responded. 

The Group discussed the problems with trying to separate sex and gender identity in the data. 0.04% who identified as non-binary amounted to 8 people across 20,000. It was not possible to do further analysis with such a small number. It was also likely that this figure for non-binary people was not representative. This may be one reason why some non-binary people did not want to engage with this and other surveys. 

It was noted that binary questions were not easy and that there were difficulties with separating sex and gender. It was commented that questions on sex and gender could be used interchangeably.

Finally, it was noted that given the overall sample size of the Scottish Household Survey, the number of respondents who would be sample of trans people (including trans men, trans women and non-binary people) was likely to be very small. 

Sex and gender in data working group

Draft guidance was published in November 2020. Stakeholders were invited to provide feedback and provide comments on the draft. The final guidance was due to be published on Tuesday 21 September along with the impact assessments.

The guidance has now been published.

The view was taken that organisations should collect data based on their needs (for example on sex, gender identity).

There was discussion around disaggregation of data. This can be very complex, in particular if the person doesn’t fit into a binary mode. Definitions of sex and gender can also be over-simplistic.

Data collection was usually based on gender but sometimes on sex. More guidance was needed on how to answer these specific questions.

The question on sex was viewed as overly authoritative as it referred to the person’s legal sex (birth certificate or Gender Recognition Certificate). However, this was not tested in the court of law. The person’s sex could be recorded differently on their driving licence or passport.

Note: Since the meeting of the group, the finalised guidance has been published. The group intends to further discuss the guidance in a future sub-group meeting, where different issues are likely to be raised given the changes between the draft guidance available at the time and the finalised guidance.

Finally, there was some feedback given on the two public engagements around the draft guidance. The events were not regarded as safe places for trans people. Transphobia at the events was not challenged. In future, there should be more focus on how to directly engage with trans people. This feedback was noted.

Census

Scotland’s Census will take place in March 2022. Guidance for the sex question was published on 31st August. This provides for a self-identification basis of response.

There will be a binary question: What is your sex? With responses being ‘female or ‘male.’

This will be followed by a voluntary question: Do you consider yourself to be trans, or have a trans history? With responses being ‘no’ or ‘yes, please describe your trans status (for example, non-binary, trans man, trans woman followed by a free-text box). This question should only be answered by people aged 16 or over and explains that trans is a term used to describe people whose gender is not the same as the sex they were registered at birth.

The Group discussed the rationale for the age limit of 16 or over to answer the trans history question. Further information about this is included in the Children’s Rights and Wellbeing Impact Assessment that had been carried out during the development of the Census. 

There was discussion around the trans history free-text box that could be filled out. Analysis of the information written in this box could be helpful to understand more about trans people. One group member asked whether this information would be disclosed. This was dependent on the numbers of people who filled out the box. There would be statistical disclosure control and it may be that this information could be published at a particular level.

Action: National Records of Scotland (NRS) to find out whether information written in the free-text box would be published, and if so, at what level.

Once the 2022 Census had taken place, analysis would take place and recommendations for the next Census would be put to Parliament, usually within a couple of years.

NRS were currently ramping up stakeholder engagement for the Census and they were encouraging as many people as possible to complete it. Their Comms team could attend any events to help with stakeholder engagement.

Action: Group members to contact NRS directly if they wanted NRS Comms team to attend any event to publicise the Census.

There was discussion around the reasons why the Census guidance and the draft Sex and Gender in Data guidance were different. They were not linked and had a different brief.

The group discussed the possibility of people not completing the binary sex question. If the Census was completed online, which would be the most popular method for completion, respondents would have to reply to the sex question or they could not proceed with further questions.

There was further discussion around what would happen to the additional information that might be included in a paper copy of the Census. It was unlikely that this information would be analysed. There was the possibility that paper copies might be discarded or defaced. It was highlighted that completing the Census was compulsory and that failure to do so may lead to a criminal record if it wasn’t completed.

Equality Impact Assessment (EQIA)

A review of the Public Sector Equality Duty is currently underway. The EQIA duty is part of this review.

Group members discussed EQIAs. There was a suggestion that it was important to focus on where there were gaps. In addition, there was a lack of understanding that trans people might be affected by new policies/legislation. Finally, different types of trans people were affected in different ways (e.g. trans men, trans women and non-binary people) and this should be reflected in EQIAs.

There is a Programme for Government 2021-22 commitment on mainstreaming equality. One key aspect is to improve data collection, including on trans people. 

Recognition in the law

The consultation on the Gender Recognition Reform Bill received over 17,000 responses and was one of Scotland’s largest consultations. The analysis of the consultation responses was published on 2 September. Only responses of organisations were published.

The Bill will be introduced in February 2022 and it is unlikely that there will be big changes to the Bill. It will therefore not include non-binary people.

One group member remarked that the Bill would go out of date very quickly if it did not include non-binary people. UK Supreme Court is currently deciding the Elan-Cane appeal, and, at the same time, there is a case before the ECtHR in Strasbourg which concerns the possibility of an intersex person to have a ‘neutral’ gender marker on their birth registration. While not exactly raising the same question as non-binary gender recognition, the results will have relevance for whether the current draft of the Scottish Bill is human rights compliant. There are also additional cases around non-binary recognition waiting to be heard at the ECHR from other European countries, that could impact the Bill going forward.

It was commented that there were other routes to recognise non-binary people if it was not possible to do so in the Gender Recognition Reform Bill. There were examples in other European and Commonwealth countries. Also, there was the possibility to build in a review of the legislation as part of the Bill. For example, Ireland had included a review after two years of the operation of their Gender Recognition Act.

The group had a short discussion around family law and commented that aspects of family law were still gendered. It was a difficult balancing act.

There was a suggestion to invite the Gender team from King’s College London Law School to the next meeting, who are working on the Future of Legal Gender project.

Action: Scottish Government to contact of Professor Davina Cooper, with the possibility of inviting them to a working group (or subgroup) meeting.

Sub-groups

The Group found the sub-groups on health issues to be useful and wanted them to continue. A request was made to have the sub-groups organised earlier this time round.

Group members suggested sub-groups on the following issues to develop recommendations on evidence and data:

• Sex and Gender in Data Working Group
• legal recognition and gendered law
• data collection for service provision
• data collection for research

Action: Scottish Government to ask group members to decide which sub-group/s they would like to participate in, set up Doodle polls for dates/times and organise meetings as soon as possible.

Date of next meeting

The next meeting is scheduled to take place on Wednesday 17 November 2021 at 14:00 – 16:00.