Non-Binary Equality Working Group: report and recommendations - March 2022

Data and Law

The second substantive meeting of the working group asked, "Where are we missing?" We looked at data and research, and where non-binary people are missing in the law. We identified four key themes:

• Data collection for research
• Data collection by service providers
• Sex and gender data guidance in Scotland
• Legal recognition and gendered law

Initially, all four topics were discussed at a full meeting of the working group.^[21] Each theme was then discussed at subgroup meetings, which were attended by members with a particular interest and by invited participants with relevant expertise. Scottish Trans and LGBT Youth Scotland also held community engagement events on the topic with non-binary people. The views shared at these were fed into discussions of the working group.

Between the initial meeting of the whole working group and subsequent subgroup meetings, the finalised sex and gender in data guidance was published by the Chief Statistician. This had changed significantly between meetings, with the change most relevant to the group being the removal of a non-binary response option from the recommended question for public bodies and service providers, which had been included in the draft guidance. Discussions of the whole group meeting on this topic should be understood in this context.

Data collection in research

16. Reintroduce a non-binary response option in Scottish Government core surveys, and introduce a non-binary response option in the next Scottish Census

A non-binary response option in data collection is the key way to ensure that non-binary people are well-represented in data. The Scottish Government should include a non-binary response option in sex questions in both the core surveys (Scottish Health Survey, Scottish Household Survey, Scottish Crime and Justice Survey) and the Scottish Census. A non-binary response option to sex questions worked well when tested by National Records Scotland (NRS),^[22] and the resulting data would enable evidence-based policymaking to meet our distinct needs.

The current situation is that there is no non-binary response option in current Scottish Government data collection, and the following recommendations are pragmatic responses to this situation. However, the most effective solution to this problem is to reintroduce a non-binary response option where it has previously existed and to introduce it where it has not.

17. Develop a plan to use the data from the trans status question used in Scottish Government core surveys and the Scottish Census to produce evidence on non-binary people in Scotland that can better inform policymaking

The current Scottish Census includes a new question which offers a textbox for people to describe their trans status, and similar questions will be used in Scottish Government core surveys. This textbox enables respondents to say that they are non-binary, but they will use a range of different terms to describe their non-binary identity.

Relevant parts of Scottish Government, including NRS, should develop a plan for analysing and using this data to produce evidence on non-binary people. This is particularly important given the decision to exclude an option for non-binary people in the sex question on the Scottish Census, and the Chief Statistician's publication of a recommended sex question that does not include a response option for non-binary people,^[23] meaning that existing Scottish Government core surveys that were providing this response option are expected to remove it. Without these questions, the trans status question is the only source of information on the non-binary population, and it will require careful and specialised analysis to ensure accurate and useful data.

18. Support specific research and evidence-gathering with non-binary people in the absence of high enough response rates from non-binary people in population-level surveys

It can be difficult to use population-level surveys to produce statistically significant information on non-binary people in Scotland. As an example, the Scottish Household Survey found that 0.01% of respondents had described their gender identity 'in another way' in 2018, and 0.04% had done so in 2019. This is likely to be even more difficult in the future, given the removal of this response option from the core question set of Scottish Government surveys, and thus the need to rely on analysis of the free textbox at the trans status question to identify non-binary people among respondents. Similarly, as the Scottish Census question on trans status will only be for those aged 16 and over, this will create an evidence gap around non-binary young people.

Where there is insufficient evidence from population-level surveys to inform policy making, the Scottish Government should undertake specific research and evidence-gathering with non-binary people. This should be part of the Scottish Government's work to improve equality evidence, and to mainstream better equality data throughout policy development.

Research should consider a range of ways of gathering evidence on non-binary people, including more qualitative approaches which hear directly from people about their lived experience. This will require work to include the voices of a range of marginalised groups, who may be small in number, and so hard to represent in quantitative data gathered at population-level.

Specific research will help to address some of the issues with current Scottish Government EQIAs, which often do not include suitable levels of evidence or detail for those with the protected characteristic of gender reassignment, particularly non-binary people.

Data collection by service providers

19. Produce clear guidance about name changes for trans and non-binary people, and for public bodies and service providers

Trans and non-binary people often face uncertainty as to how to change their name legally, with government services, and with public and private service-providers. They sometimes face prejudice when updating personal details too. Scottish Trans and LGBT Health and Wellbeing are both frequently asked for assistance by the community in this area.

The Scottish Government should produce clear guidance for trans and non-binary people as to how to change their name. This should include specific information for trans and non-binary young people and those working with them, outlining the role that those with parental rights and responsibilities have in supporting a young person to record a name change.

The Scottish Government should provide guidance for public bodies and service providers on the need for them to have quick and accessible ways for people to update their names and details, with reference to relevant legislation, including data protection. The guidance should include a recommendation that public bodies and service providers should, as a minimum, provide an option for gender-neutral titles, or the option to have no title recorded.

This proposal has benefits well beyond the trans and non-binary community, as people change their name for a variety of reasons, and should have access to respectful and efficient means of doing so.

20. Produce clear guidance for service providers on the gathering of sex/gender information

Being asked unnecessarily about sex/gender can present barriers to trans and non-binary people accessing services. Where people are aware that the first thing that they may be asked when interacting with a service is "Are you male or female?", or that their gender identity and presentation are likely to be questioned, trans and non-binary people may simply choose not to engage at all.

This recommendation is not that services should never ask about sex/gender. There are a range of important reasons to ask these questions, and to produce gender-disaggregated data. Where this is the case, we are strongly in support of services asking sex/gender questions, while also providing an option for non-binary people to be recorded.

However, service providers and public bodies often treat asking about sex/gender differently than asking about other sensitive personal data. Sex/gender data is often collected by custom, as one of the first questions, and often with no clear purpose for using or analysing the data. This creates barriers for non-binary people, particularly in services that only provide a male or female response option.

The barriers created by asking unnecessary sex/gender questions are much more significant than simply feeling that you are "missing" on a form. These questions can require trans and non-binary people to disclose their status to a service provider before they may be ready to do so, or can require non-binary people to present themselves as simply a man or a woman in order to access the service they need.^[24] Asking these questions with no clear purpose, and often at the point of accessing a service, creates an expectation that the service may not understand or provide appropriate support for trans and non-binary people. For people who have had previous experiences of transphobia when accessing services, this can raise fears that their identity and presentation is more likely to be scrutinised and challenged by that service, which can negatively impact their experience of using it, or prevent them from using it at all.

It is important that questions on trans status and sexual orientation are voluntary, as they are in the Scottish Census, and are asked only when necessary. While it is important to improve data on trans status and sexual orientation across services, this should always be on a voluntary basis. Requiring people to answer these questions can create additional barriers to accessing services. This is particularly the case for trans and non-binary people who have previously faced discrimination in services, who will have well-founded fears that they will face further discrimination if they disclose that they are trans or non-binary at the point of accessing a service.

The Scottish Government should show leadership in this area, by ensuring that whenever people interact with the state, they are not required to provide information about sex/gender at the point of initial contact, unless explicitly relevant. Decisions on collecting sex/gender data should be taken in the same way as decisions to collect other sensitive personal data, with these questions not being asked as a default without a clear purpose. Future revisions of the Sex and Gender in Data Guidance, published by the Chief Statistician, should also stress this approach.

21. Review IT systems, particularly in healthcare settings, to identify and remove barriers to non-binary people accessing services

This recommendation is linked in many ways to the recommendation within the health theme to review the use of a hard-coded gender marker in Community Health Index numbers.

When databases with personal information have a "mismatch", this can cause problems when IT systems communicate. This is a significant barrier to trans and non-binary people accessing services. For example, in many healthcare systems, gender fields and title fields are "locked" to one another, so a person may be unable to update either their gender or their title, if they wish to do so in a way that the IT system codes as "incorrect". This is not simply a question of recognition: such administrative hurdles can sometimes lock trans and non-binary people out of services when an IT system cannot process their records.

The Scottish Government should conduct an audit of how and where gendered information about an individual is linked across IT and administrative systems, and ensure that there are adequate, robust, and accessible procedures in place for ensuring that no one is denied access to services due to problems with data linkage, and that all trans and non-binary people are able to update their details in a timely and simple manner.

Sex and gender data guidance in Scotland

22. Include a non-binary response option in the recommended sex question in the next update to the Chief Statistician's Sex and Gender in Data Guidance

We are disappointed in the change between the draft guidance produced by the Chief Statistician, which included recommending a non-binary response option in questions on sex/gender, and the finalised guidance, which removed the non-binary response option. This was particularly disappointing as it represented a backwards step for the equality and inclusion of non-binary people. The publication of the guidance is likely to mean that a non-binary response option may be removed where it currently exists, such as in the Scottish Household Survey and in demographic questions asked by Social Security Scotland. As discussed throughout this report, this will lead to poorer data on non-binary people in Scotland, and it will create barriers to non-binary people participating in surveys.

We do welcome the inclusion of a "prefer not to say" option in the recommended question set, and we also welcome other aspects of the guidance, such as the recommendations that trans men and trans women should continue to be able to respond to sex/gender questions in line with how they are living, and that a trans status question should be asked where appropriate.

A non-binary response option should be included in the recommended sex question in the next update to the Sex and Gender in Data Guidance.

23. Review the Chief Statistician's Sex and Gender in Data Guidance regularly, and ensure better inclusion of trans and non-binary people in the review process

Trans and non-binary people should be better consulted in reviews of the Sex and Gender in Data Guidance than in its initial development. Although there were public stakeholder events during the development of the guidance, these were for the general public, rather than for specifically affected groups. This led to the potential for public hostility at events, which made confident participation by trans and non-binary people difficult.

Reviews of the guidance should examine the impact that the trans status question has had, and the degree to which trans people have felt confident to disclose their trans status or history when asked. They should include specific consideration of non-binary people's views, both on using the trans status question, and on the impact of the removal of the non-binary response option in the recommended sex question.

Legal recognition and gendered law

24. Commission expert research on non-binary legal recognition, with the view to introducing it in Scotland

In the working group's terms of reference, it was noted that it had been set up following an announcement in July 2019 by the previous Cabinet Secretary for Social Security and Older People, Shirley-Anne Somerville, in which she stated:

"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 group began meeting two years later, following the May 2021 election in which a new Scottish Government was elected. That new government introduced a Bill to reform the Gender Recognition Act to the Scottish Parliament in 2022, and this Bill does not propose the legal recognition of non-binary people.^[26]

All working group meetings and community forums held the shared view that legal recognition of non-binary people is a crucial step in ensuring non-binary people can fully realise their rights and live equally in Scottish society. Currently, the lack of legal recognition leaves non-binary in the same position as trans men and trans women before the Gender Recognition Act 2004: with no way to change their birth certificates to reflect how they live their lives, and with no way to be legally recognised as who they are. Indeed, in many ways, the position of non-binary persons is more legally and socially precarious, as there are no alternative identity documents, such as passports, on which they can obtain correct sex markers.^[27] Even if not currently unlawful under the European Convention on Human Rights (ECHR),^[28] the absence of legal gender recognition for non-binary people in Scotland negatively impacts their right to private life (under article 8 of the Convention).

In the first of the previous Scottish Government's consultations on reform of the Gender Recognition Act 2004, they asked a range of questions about improving non-binary people's rights. 62% of respondents agreed that Scotland should take action to recognise non-binary people, and 75% of those respondents thought that the action taken should be full legal recognition using the posed self-declaration model for gender recognition.^[29]

We are profoundly disappointed that there is no intention to legally recognise non-binary people in the current plans to reform this law, and that a recommendation to do so in this report is likely to be rejected by Scottish Ministers. We are therefore making a recommendation that would allow non-binary people and policymakers to move forward from the current position, with a view to achieving legal recognition of non-binary people as soon as possible in the future.

Meaningful work must be done to investigate the need for non-binary legal recognition, how it might work, and the necessary evidence to make informed decisions. Such work would reflect that:

• There are a range of views among non-binary people, policymakers and academics about the most desirable way of providing legal recognition to non-binary people.
• There is the need to explore the potential impacts of such a change on the Scottish legal system, where the idea that all persons are either men or women is deeply entrenched.
• This is a fast-changing area of law, and there are a range of cases currently being heard at both the UK and Council of Europe levels, which consider whether and when states must provide alternative gender markers on a range of identity documents.^[30]

The question of how best to legally acknowledge non-binary identities is being explored by legislatures and courts in other European and common law jurisdictions. Although no case in this area has yet been decided in a way that would require the Scottish Government to legally recognise non-binary people, this may change in the future, as more European jurisdictions do provide legal recognition and, in the specific context of the ECHR, the margin of appreciation owed to State Parties in this area changes. Preparatory work must be done now, both to lay the groundwork for future changes, and to ensure that, should the national and international legal context require change, the Scottish Government will be in the best position to take effective action.

Current Scottish Government understanding of non-binary legal recognition is underdeveloped, and public institutions in other jurisdictions, such as Belgium,^[31] have recently commissioned expert reports in this area. The Irish Gender Recognition Act 2015 (the Act) required ministers to commence a review into the operation of the Act no later than two years after it came into operation, as well as a requirement to report on the review within one year of its commencement.^[32] The subsequent review included a specific focus on non-binary legal recognition.^[33]

The Scottish Government should undertake a detailed scoping exercise, and commission and complete a detailed piece of expert research into non-binary legal reform. This work should be wide-ranging, should involve policymakers, academics and non-binary people. This work should enable a full exploration of how to legally recognise non-binary people in Scotland.

25. Ensure that future legislation does not further entrench unnecessarily gendered terminology or assumptions across the law

Gendered legislation can produce barriers to non-binary people being fully included and recognised in the law and, as a result, in society. The idea that all people are either men or women is deeply entrenched in law, which is a central reason that the Scottish Government decided against legally recognising non-binary people through current reforms. The first consultation on the Gender Recognition Act 2004 reform outlined a range of areas of law which might be affected by non-binary legal recognition, including family law, marriage law, and laws regarding the victims of crime.^[34]

The gendering of law creates barriers for non-binary people, as it makes it less clear that they are able to access key legal rights and protections. For example, the language in the Equality Act 2010, in defining the protected characteristics of "sex"^[35] and "gender reassignment",^[36] creates uncertainty about whether non-binary people enjoy protection against sex or gender reassignment discrimination alongside trans men and trans women.^[37] This makes it harder for non-binary people to address discrimination and harassment in the workplace and in services. The uncertainty in the law also makes employers and service providers uncertain about their rights and responsibilities towards non-binary employees and service users.

The Scottish Government should ensure that future legislation does not further contribute to this problem by using gendered terminology or assumptions in ways that do not provide benefit or value. This recommendation is not a call to make the law gender-neutral. Legislation serves a range of purposes and deals with diverse areas of life, and there will be many areas where it is necessary and important for the law to be gendered. However, ensuring that the law is not unnecessarily gendered would have a positive impact on many more people than non-binary people, and trans people of all genders. In many instances, the gendering of law is on the basis of assumptions about the lives of men and women, or about typical family lives. This can often disadvantage women, as well as LGBTI+ people of all genders.

Broadly, there are three approaches to gender and the law:

• Where the law intends to treat everyone the same, language used should be universal and inclusive. For example, in situations where the law does not intend to draw gendered distinctions, it is appropriate to use more generally applicable statutory language (e.g. "all people", "everyone", etc.) in place of "men and women".
• Where the law intends to treat men and women differently, but aims to deal with the whole population, gender additive language should be used where trans and non-binary people may have different needs from the broader population. For example, legislation that refers to "mothers" could refer to "mothers and birth parents".
• Where the law intends to treat men and women differently and it is aimed at a specific issue, there would likely be no need for change. Similarly, where the law intends to treat trans and non-binary people differently, then language explicitly naming trans and non-binary people would be appropriate. In such cases, law should also be subject to an analysis of how trans and non-binary people's needs may differ from the broader population. For example, legislation dealing with the gender pay gap should continue to address differences between men and women, and it should also address the pay gap between cisgender people and transgender people.^[38]

The Scottish Government should ensure that future legislation is subject to robust gendered analysis that does not further entrench unnecessarily gendered terminology or assumptions across the law.

26. Review the use of, and take action to remove, unnecessary gender markers from identity documents, including by working with the UK Government to take action where ID is administered on a UK-wide basis

During their daily lives, non-binary people often have to show ID with a gender marker that does not reflect who they are. This can force a non-binary person to disclose their gender history, as the marker on their ID may be in contrast to how they are perceived by others. This can lead to not having their identity believed or respected, due to having to provide a document that is seen as authoritative and which contradicts their stated identity. This creates barriers for non-binary people accessing services and entering the workplace.

It is not always necessary for ID to disclose gender, in the same way as ID does not need to disclose information on other protected characteristics. The Scottish Government should review the use of, and take action to remove, unnecessary gender markers from ID. Many types of ID are governed and administered on a UK-wide level, such as driving licences and passports, and where this is the case, the Scottish Government should collaborate on a review with the UK Government.