Non-Binary Equality Working Group: report and recommendations - March 2022
The Working Group on Non-Binary Equality was formed by the Scottish Government to consider ways to improve the lives of non-binary people. This report is the result of their work, including 35 detailed recommendations covering practical ways to make a lasting, meaningful difference.
Footnotes
1. https://www.gov.scot/publications/non-binary-working-group-minutes-june-2021/
2. Gender Reassignment Protocol (GRP) 2022 https://www.ngicns.scot.nhs.uk/information/grp/
3. NHS Gender Identity Services Strategic Action Framework 2022-2024 https://www.gov.scot/publications/nhs-gender-identity-services-strategic-action-framework-2022-2024/
4. NHS Gender Identity Services Strategic Action Framework 2022-2024 https://www.gov.scot/publications/nhs-gender-identity-services-strategic-action-framework-2022-2024/
5. Schulz, S. (2017) "The Informed Consent Model of Transgender Care: An Alternative to the Diagnosis of Gender Dysphoria" Journal of Humanistic Psychology pp. 72-92
6. Scottish Public Health Network Health Care Needs Assessment of Gender Identity Services https://www.scotphn.net/wp-content/uploads/2017/04/2018_05_16-HCNA-of-Gender-Identity-Services-1.pdf
7. Scottish Public Health Network Health Care Needs Assessment of Gender Identity Services https://www.scotphn.net/wp-content/uploads/2017/04/2018_05_16-HCNA-of-Gender-Identity-Services-1.pdf
8. See for example the UK Government Office National LGBT Survey: Research Report https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721704/LGBT-survey-research-report.pdf
9. Scottish Trans Non-binary people's experiences of using UK Gender Identity Clinics https://www.scottishtrans.org/wp-content/uploads/2016/11/Non-binary-GIC-mini-report.pdf
10. TransActual Trans Lives Survey 2021: Enduring the UK's Hostile Environment https://static1.squarespace.com/static/5e8a0a6bb02c73725b24dc9d/t/6152eac81e0b0109491dc518/1632824024793/Trans+Lives+Survey+2021.pdf
11. All figures from National Gender Identity Clinical Network Scotland (NGICNS) Waiting List and Workload Quarterly Reports
12. Available in Scottish Public Health Network Health Care Needs Assessment of Gender Identity Services https://www.scotphn.net/wp-content/uploads/2017/04/2018_05_16-HCNA-of-Gender-Identity-Services-1.pdf
13. https://www.gov.scot/publications/nhs-gender-identity-services-strategic-action-framework-2022-2024/
14. Available in Scottish Public Health Network Health Care Needs Assessment of Gender Identity Services https://www.scotphn.net/wp-content/uploads/2017/04/2018_05_16-HCNA-of-Gender-Identity-Services-1.pdf
15. LGBTI People and Mental Health Inequalities https://www.lgbthealth.org.uk/wp-content/uploads/2018/08/LGBTI-Populations-and-Mental-Health-Inequality-May-2018.pdf
16. Scot PHN Health Care Needs Assessment of Gender Identity Services https://www.scotphn.net/wp-content/uploads/2017/04/2018_05_16-HCNA-of-Gender-Identity-Services-1.pdf
17. Scottish Trans Non-binary people's experiences in the UK https://www.scottishtrans.org/wp-content/uploads/2016/11/Non-binary-report.pdf
18. Equality Network Trans People's Experiences of Reproductive and Fertility Services in Scotland https://www.equality-network.org/wp-content/uploads/2021/08/Repro-report-Trans-final-web.pdf
19. The recent observations of Sir Andrew McFarlane, President of the Family Division of the High Court of England and Wales, in R (on the application of TT) v Registrar General for England and Wales ([2019] EWHC 2384 (Fam)) are particularly relevant. TT involved a dispute regarding the legal status of a trans man who, subsequent to obtaining a Gender Recognition Certificate, gave birth to a child using assisted reproduction services. In finding that the individual had to be registered as his child's "mother" for the purposes of English law – a decision subsequently confirmed by the Court of Appeal in England and Wales – the President questioned whether the provision of treatment to the individual in this case had been lawful. In particular, he noted that, under s. 2 of the HFEA 1990, "treatment services" are defined as "medical, surgical or obstetric services provided to the public or a section of the public for the purpose of assisting women to carry children" [emphasis added]. The HFEA 1990 empowers the Human Fertilisation and Embryology Authority to grant licences to fertility clinics to provide "treatment services" and it prohibits the provision of certain services without a licence. While not determinative in TT (and not substantively addressed by the Court of Appeal), the President suggested that it was "questionable whether the provision of treatment services to a man is within the range of activities that the HFEA is permitted to authorise by licence" [155].
20. Equality Network Trans People's Experiences of Reproductive and Fertility Services in Scotland https://www.equality-network.org/wp-content/uploads/2021/08/Repro-report-Trans-final-web.pdf
21. https://www.gov.scot/publications/non-binary-working-group-minutes-june-2021/
22. https://www.scotlandscensus.gov.uk/documents/sex-question-recommendation-report/html/
24. Scottish Trans Non-binary people's experiences in the UK https://www.scottishtrans.org/wp-content/uploads/2016/11/Non-binary-report.pdf
25. https://www.gov.scot/publications/statement-gender-recognition/
26. https://www.parliament.scot/bills-and-laws/bills/gender-recognition-re form-scotland-bill?fbcl
27. See: Goodwin v UK (1996) 22 EHRR 123, [65] and [73].
28. The question of whether the European Convention of Human Rights requires State Parties to legally recognise sex categories beyond 'male' and 'female' has not yet been definitively answered by the European Court of Human Rights. In 2021, the UK Supreme Court found that art. 8 of the Convention does not currently require the UK Government to issue non-gendered passport documents; see: R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56.
30. See e.g. Y v France (App. No 76888/17, European Court of Human Rights, pending), which concerns an individual who experiences intersex, and who wishes to have a 'neutral' or 'intersex' sex marker in the birth registration system.
31. See e.g. Emmanuelle BRIBOSIA, Isabelle RORIVE and Hania OUHNAOUI, Rapport au sujet de l'arrêt n° 099-2019 de la Cour constitutionnelle du 19 juin 2019 annulant partiellement la loi du 25 juin 2017 réformant des régimes relatifs aux personnes transgenres, et de ses conséquences en droit belge à la lumière du droit compare (Institut pour l'Egalité entre les Femmes et les Hommes, 2019).
32. https://www.irishstatutebook.ie/eli/2015/act/25/section/7/enacted/en/html#sec7
33. https://www.gov.ie/en/consultation/001721-review-of-the-gender-recognition-act-2015/
35. https://www.legislation.gov.uk/ukpga/2010/15/section/11
36. https://www.legislation.gov.uk/ukpga/2010/15/section/7
37. In the recent Employment Tribunal decision, Taylor v Jaguar Land Rover Ltd (304471/2018), Employment Judge Hughes (Sitting with Mr T.C. Liburd and Mrs R.J. Pelte) suggested that non-binary experiences of gender would fall within the protected characteristic of 'gender reassignment'. At para 178 of the Full Reasons, the Tribunal states: "We thought it was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so, whether they described themselves as "non-binary" i.e. not at point A or point Z, "gender fluid" i.e. at different places between point A and point Z at different times, or "transitioning" i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex. We concluded that it was beyond any doubt that somebody in the situation of the Claimant was (and is) protected by the legislation because they are on that spectrum and they are on a journey which will not be the same in any two cases. It will end up where it does. The wording of section 7(1) accommodates that interpretation without any violence to the statutory language Consequently, there is jurisdiction to hear the gender reassignment claim."
38. Kristen Schilt and Matthew Wiswall (2008) "Before and After: Gender Transitions, Human Capital, and Workplace Experiences," The B.E. Journal of Economic Analysis & Policy: Vol. 8: Iss. 1 (Contributions), Article 39. Available at: http://www.bepress.com/bejeap/vol8/iss1/art39
39. https://leapsports.org/files/4225-Non-Binary%20Inclusion%20in%20sport%20Booklet.pdf
40. https://aroundthetoilet.files.wordpress.com/2018/05/around-the-toilet-report-final-1.pdf
41. https://www.stonewall.org.uk/sites/default/files/lgbt_in_britain_home_and_communities.pdf
42. https://www.akt.org.uk/Handlers/Download.ashx?IDMF=c0f29272-512a-45e8-9f9b-0b76e477baf1
43. https://www.akt.org.uk/Handlers/Download.ashx?IDMF=b49dc34a-5ae9-4919-9041-2d4d75534642
45. https://www.gov.scot/publications/bairns-hoose-scottish-barnahus-vision-values-and-approach/
46. For further discussion of some of these, see LGBT Youth Scotland's Youth Commission on Care Experience: https://www.lgbtyouth.org.uk/national-programmes/youth-activism/youth-commission-care-experience/
47. For further discussion of some of these barriers, see the trans survivor-led project from Survivors Network and Switchboard in Brighton: "I am not alone: How can survivor support services meet the needs of trans and non-binary survivors" https://survivorsnetwork.org.uk/wp-content/uploads/2021/08/I-am-not-alone..pdf
48. Peitzmeier, S.M., Malik, M., Kattari, S.K., Marrow, E., Stephenson, R., Agénor, M., Reisner, S.L. (September 2020) "Intimate Partner Violence in Transgender Populations: Systematic Review and Meta-analysis of Prevalence and Correlates" American Journal of Public Health Vol. 110, Iss. 9: E1-E14
49. For example, in the latest Scottish Government Programme for Government p.101-102: https://www.gov.scot/publications/fairer-greener-scotland-programme-government-2021-22/
50. https://leapsports.org/files/4225-Non-Binary%20Inclusion%20in%20sport%20Booklet.pdf
51. https://www.scottishtrans.org/wp-content/uploads/2016/11/Non-binary-report.pdf
53. https://leapsports.org/files/1741-Outsport%20Scotland%20Report.pdf
54. https://sportscotland.org.uk/media/6403/equality-and-sport-research-2020-technical-report_final.pdf
56. https://leapsports.org/news/review-into-transgender-inclusion-in-domestic-sport-in-the-uk
57. https://www.gov.scot/publications/fairer-greener-scotland-programme-government-2021-22/
a. https://www.gov.scot/news/milestone-for-equality-in-schools/
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