Review of the Gender Recognition Act 2004: consultation analysis

6. Non-binary people

6.1. The consultation paper explains that a non-binary person’s gender identity is not that of a man or woman and that the Equality and Human Rights Commission Note on Measuring Gender Identity reported that 0.4% of people who answered a question about their gender identity reported that they identified in another way from a man or woman. The consultation paper suggests that taking action to ensure that non-binary people are not excluded could increase non-binary peoples’ acceptance and reduce the levels of discrimination they experience.

Question 12 - Should Scotland take action to recognise non-binary people?

Chart 12: Question 12

6.2. A majority of respondents, 62% of those answering the question, thought that Scotland should take action to recognise non-binary people. Of the remaining respondents, 33% did not think Scotland should take action and 4% did not know. Respondents resident in Scotland and the rest of the world were more likely to think Scotland should take action, while those resident in the rest of the UK were less likely.

6.3. Around 3,370 respondents went on to make a further comment at Question 12.

Comments by those who agreed

6.4. Around 910 respondents who had agreed at Question 12 went on to make a comment. Of these, around 1 in 10 simply made a statement of support.

6.5. The most frequently made comment by those who agreed that Scotland should take action to recognise non-binary people was that the non-binary gender exists and that being non-binary is just as valid as being one of the binary genders or being a trans woman or man. Around 4 in 10 respondents highlighted this issue. Those raising this issue sometimes noted that they themselves are non-binary. Others noted that they have non-binary partners, family members or friends. Respondents commented on difficulties they themselves, or those known to them, experience in their day-to-day lives. They talked of the pain and humiliation that can result from being misgendered in all aspects of life, and with specific reference to being misgendered by health and other public services. Some talked of the negative impact misgendering can have on their lives, including feeling rejected by, and alienated from, society. Respondents also noted the negative impact this can have on their feeling of self-worth and their mental health.

6.6. Around 1 in 4 respondents felt that it is important for Scotland to take an inclusive approach in which non-binary people have the same rights as everyone else. Respondents resident in Scotland were more likely to raise this issue than those from elsewhere. Further comments included that non-binary people deserve respect and recognition and that enshrining this approach in law could help wider society take a more accepting and inclusive approach. Smaller numbers of respondents suggested that legal recognition is key and could act as a driver of societal change. It was also suggested that Scotland has the opportunity to take a clear and inclusive stand on this issue and in doing so would come into line with other jurisdictions that have recognised non-binary people.

6.7. From a slightly different perspective, around 1 in 10 respondents felt that to fail to recognise non-binary people would be to imply that they do not exist or are not entitled to the same rights and acceptance within society as everyone else.

6.8. Just as many felt it is important for society to be inclusive, many also highlighted the importance of allowing people self-determination and to make their own choice as to their gender identify. Around 1 in 5 raised this issue, with those resident in Scotland more likely to raise this issue than those resident elsewhere. Further points included that it is wrong to force people to misidentify themselves in order to access key services or to operate within the workplace.

6.9. A smaller number of respondents also highlighted the particularly damaging impact being misgendered, or being required to misidentify their gender, can have on the individuals concerned. These respondents referred to the very positive impact recognising their non-binary status could have and the benefits for non-binary people’s health and wellbeing. There was particular reference to the positive impact recognition could have on people’s mental health. A small number of respondents who said they are non-binary felt that recognition could literally be a life saver for them.

6.10. Other points raised, in each case by smaller numbers of respondents, reflected those made at earlier questions and included that gender is a social construct and society should not be defining, or redefining, people based on gender. Others commented that any recognition of non-binary people should not be at the expense of women and girls and should not put their safety and rights at risk. These themes were also raised by those who disagreed at Question 12.

Comments by those who disagreed

6.11. Around 2,300 respondents who disagreed at Question 12 went on to make a comment.

6.12. The most frequently made comment, made by around 4 in 10 respondents, was that humans are sexually dimorphic and that, apart from a small number of people who are intersex, everyone is born male or female and with XY (male) or XX (female) chromosomes. Some went on to comment that, irrespective of how someone identifies or any other action they take, people will always remain male or female because of their chromosomal makeup.

6.13. Around 1 in 10 made a more general point that there is no scientific or biological basis for being non-binary, while a smaller number of respondents thought it important to remember that being non-binary is a gender identity rather than a third sex. Others, again in smaller numbers, suggested that identifying as non-binary is simply an expression of personality or preference rather than a serious statement of self-identity. Some, again in smaller numbers, suggested that being non-binary is a mental illness while others suggested it is nothing more than a fashion or a whim. There were associated concerns that recognising non-binary people could lead to calls for a range of other genders or expressions of self-identity to be recognised.

6.14. Commenting on gender rather than sex, around 1 in 5 respondents suggested that most, if not all, people are non-binary in that they do not conform fully to gender-based stereotypes. Respondents from the rest of the UK and the rest of the world were more likely to make this overall point than those resident in Scotland. This also applied to the group of around 1 in 6 who commented that gender is a social construct. The further issues raised by this group of respondents very much reflected those covered at earlier questions.

6.15. Other comments focused on the practical implications of recognising non-binary people. The most frequently made of these points, raised by around 1 in 10 respondents, centred around the use of sex-specific services. There were queries as to whether a third set of non-binary services would be required, or whether a non-binary person would be able to choose which sex-specific service they wished to use. As at other questions, and at Question 1 in particular, respondents raised concerns about biological men having access to female-only services and the potential safety and privacy issues that would result. There was specific reference to women’s refuges, health services, changing rooms and toilets, and the prison estate. In terms of a third set of services, respondents tended to suggest this would be impractical and very costly.

6.16. Other challenges raised by smaller numbers of respondents included:

• Non-binary would need to be defined as a term and this would be very difficult if not impossible
• Many of Scotland’s laws and customs are based on male and female identities and are gender-based. The introduction of a third gender would require a wholesale revision of those laws and customs.
• The changes required would be very complex and would be a significant administrative and legal burden on Scotland at a time when the country may have other more pressing priorities
• There could be serious implications for the gathering of sex-based data. There were particular concerns that crime data would not reflect the true sex-based picture in relation to the perpetrators of violent crime, sexual assault and rape. There were also concerns that the planning of sex-specific services could be undermined if accurate sex-based data is not available.
• There could also be challenges around ensuring that non-binary people receive the right medical care when that care is dependent on someone’s biological sex. Difficulties around ensuring someone is called for the correct sex-based medical screening were also suggested.

6.17. Around 140 respondents either answered that they did not know or did not answer Question 12 and then went on to make a comment. These comments very much reflected those raised by respondents who had disagreed at Question 12, with the exception of some respondents noting that they had little knowledge of non-binary issues and felt unable to give an informed view.

6.18. As the consultation paper notes, the Scottish Government has identified six broad options to advance the recognition of non-binary people and that it may be possible to pursue more than one of these options.

Question 13 - If you answered Yes to Question 12, which of the identified options to give recognition to non-binary people do you support?

Option 1: Changes to administrative forms

Option 2: Book of Non-Binary Identity

Option 3: Limited document changes

Option 4: Full recognition using proposed self-declaration system

Option 5: Incremental approach

Option 6: Amendment of the Equality Act 2010

None of the above options

6.19. Respondents were able to select as many of the options as they wished. The chart below presents figures for the number of times each option was selected.

Chart 13: Question 13 frequencies

6.20. The most frequently chosen option, selected by 75% of those answering the question, was Option 4 – full recognition using the proposed self-declaration system. Options 1 and 6 also received a high level of support, being chosen by 68% and 62% respectively. Option 3 was selected by 40% of those answering the question, while the fewest respondents selected Option 2, Option 5 or None of the above (17%, 14% and 13% respectively).

6.21. As set out with Table 13 at Annex 2, respondents resident in Scotland were slightly more likely to have selected Options 1,3,4,5 and 6 than all other respondents. Respondents resident in Scotland were also slightly less likely to have selected None of the above.

6.22. The three most frequently selected combinations of options were:

• Options 1, 3, 4 and 6. This combination of options was preferred by around 1 in 4 of those answering Question 13.
• Options 1, 4 and 6. This combination of options was preferred by around 1 in 8.
• Option 4 only. This option was preferred by around 1 in 10.

Options 1-6

6.23. Around 1,150 respondents went on to make a further comment. Of these, around 770 had agreed at Question 12.

6.24. The most frequently raised issue, by around 1 in 3 of those who had agreed at Question 12, was that, whichever option or options are chosen, it is important that non-binary people have the same rights and protections as others. Specifically, it was suggested that non-binary people are entitled to the same rights as trans or cis people. Some commented that non-binary people should have an equivalent gender recognition process as trans people. It was also suggested that there is no reason why non-binary people need their gender to be legally recognised less than any trans person; nor is there any reason they should be further scrutinised or unable to determine their gender for themselves.

6.25. Otherwise, comments tended to focus on why respondents agreed or disagreed with one or more of the options set out.

Option 1: Changes to administrative forms

6.26. Around 1 in 6 respondents commented on Option 1, with these comments almost exclusively made in support of Option 1. They tended to centre around the importance of non-binary people not having to misgender themselves on forms. It was suggested that without Option 1 there would be little to gain from someone being recognised as non-binary since they would still be constantly misgendered in documents.

6.27. Other comments included that there is often no need for gender to be gathered at all but that, if there is a need, an 'Mx' or other gender-neutral option should be available. A Union or Political Party respondent reported that they are part way through the process of checking their own internal administrative forms and processes to ensure they are inclusive of non-binary identities. The review includes looking at which requests for information about sex or gender are unnecessary and should be removed, which are justifiable, and which should include options that are inclusive of non-binary people. The intention is then to raise these issues with employers.

6.28. Respondents sometimes noted that they saw Option 1 as being part of the package of options that would provide the necessary legal protections and recognition for non-binary people. This was sometimes linked to being equivalent to the protections proposed for trans people. As noted above, the two most frequently suggested combinations of options both included Option 1.

6.29. Other comments about Option 1 included that:

• Changes to administrative forms would allow for the capture of accurate and valuable data, including for equality monitoring purposes
• Option 1 should be a relatively easy option to deliver.

Option 2: Book of Non-Binary Identity

6.30. Around 1 in 6 respondents commented on Option 2, with the vast majority explaining why they had not selected this option. It was suggested that a Book of Non-Binary Identity would be an expensive waste of time which would only be symbolic, and which would bring no real benefit to non-binary people. Others had concerns that any record could be misused, particularly if made publicly available.

Option 3: Limited document changes

6.31. Around 1 in 5 respondents commented on Option 3. A frequently made comment was that it will be important that non-binary people are able to obtain documents in line with their legal gender recognition. This was frequently connected with the changes to administrative forms as at Option 1. Some respondents went on to suggest that the changes should not be limited and that all identity documents with a gender marker should carry an option to recognise non-binary identities. For example, it was suggested that it should be a legal requirement for all documentation that asks for someone’s gender to offer non-binary, trans and/or prefer not to say choices.

6.32. A small number of respondents commented specifically on any requirement for a medical practitioner to confirm someone's gender. It was suggested that this approach could be frustrating for non-binary people and would allow medical professionals to gatekeep someone's gender identity.

6.33. Finally, a Trans Group respondent noted the logistical difficulties that would come with diverging from the approach used in the rest of the UK. They suggested that the Scottish Government should press for wider change and recognition of non-binary rights across the UK.

Option 4: Full recognition using proposed self-declaration system

6.34. Around 1 in 6 respondents commented on Option 4, with a number of these respondents noting that they saw this option as being the most important. This applied not only to those who had only selected Option 4 but also to those who had chosen Option 4 amongst others.

6.35. The reasons respondents gave for seeing Option 4 as primary included that non-binary people should have access to the same legal gender recognition process as trans people and that it is the option which would do most to advance recognition of non-binary people in Scotland. It was also suggested that having different arrangements for trans and non-binary people would be confusing.

Option 5: Incremental approach

6.36. Around 1 in 9 commented on Option 5. These respondents were relatively evenly divided between those who had selected Option 5 and those who had not.

6.37. Some of those who had chosen Option 5 and commented felt that the scale of the possible changes meant that an incremental approach was probably the only viable option, particularly given the need to determine the legal implications of full recognition. It was also suggested that it would help minimise the costs involved. A Local Authority, H&SCP or NHS respondent noted that, as a public authority, they are aware of the practical issues associated with creating a new protected characteristic, including around enhanced data gathering and reporting. They also noted the need to gain the public’s confidence that this information is being used to reduce barriers and promote equality.

6.38. Others who had selected Option 5 raised similar concerns to those who had not. These centred around an incremental approach leading to unnecessary and unreasonable delays, to the detriment of non-binary people. Specifically, it was suggested that an incremental approach would give employers and services the space to continue discriminating, including by not providing the services that are required legally. It was suggested that any changes should be made as quickly as possible and, in particular, that they should be included in any upcoming revision of the Gender Recognition Act.

6.39. It was also suggested that Option 5 as presented in the consultation paper represents little more than what is already happening, especially around commissioning research into the particulars of non-binary life. It was suggested that this consultation will provide the Scottish Government with more than enough research and reasoning to support the full legal recognition of non-binary gender identities.

6.40. However, challenges were recognised. For example, it was suggested that while it may not be practical to offer gender-neutral toilets or changing areas in all, most, or even many government or publicly-accessible buildings, it may be practical in some buildings. It was also suggested that there could be a requirement for new-build public buildings to include non-binary spaces if appropriate.

Option 6: Amendment of the Equality Act 2010

6.41. Around 1 in 5 respondents commented on Option 6. A considerable majority of those commenting had selected Option 6. Respondents sometimes suggested that updating the Equality Act 2010 will be an important, if not vital, legislative step for non-binary people. Specifically, it was suggested that creating a non-binary category but not amending the Equality Act to explicitly protect non-binary people could open people up to facing more discrimination on the basis of gender identity than they do currently.

6.42. However, it was noted that while the Gender Recognition Act 2004 has been devolved to the Scottish Parliament, the Equality Act 2010 has not. It was suggested that the Scottish Government will need to lobby actively for amendment of the 2010 Act to include non-binary people. It was also noted that, while the Scotland Act 2016 allows for some areas of equalities to be legislated for in Scotland and while the Equality Act may not be amended by devolved administrations, supplementary provisions can be added. The LGBT group highlighting this issue went on to note that, since any Scottish amendments could only apply to public bodies, they would fail to add critical protections against discrimination in areas such as employment and provision of services. They commented that they would prefer to see consistent protection for all areas across the UK.

6.43. Other comments included that 2010 Act’s reference to ‘gender reassignment' is ambiguous, confusing and not well understood. A possible solution suggested was to refer to ‘gender expression and trans identity’. There was also support for the Equality and Human Rights Commission recommendation (as referenced in the consultation paper), that the definition of the protected characteristic should be broadened to include all people who face ill treatment as a result of their gender, including both gender identity and expression. It was suggested that amending the protected characteristic in this way would ensure not only protections for all trans people, including non-binary people, but also cis-gender people who face similar issues simply for their gender expression.

6.44. Finally, a small number of respondents commented that it will be important to retain sex as a protected characteristic.

None of the above options

6.45. Around 280 respondents selected None of the above options at Question 13 and then went on to make a further comment. Around 80 respondents who had either disagreed or had not answered Question 12 also commented at Question 13. The vast majority of these comments reflected issues raised by those who had disagreed at Question 12. These included that non-binary does not exist, that sex is binary and that any information gathered should record sex not gender.

6.46. A small number of alternative approaches to the six options outlined above were suggested. These included:

• Repealing the Gender Recognition Act and amending the Equality Act 2010 by changing the protected characteristic from gender identity to gender non-conformity
• Carrying out a full Equalities Impact Assessment based on sex as a protected characteristic to fully understand the impact of the proposed changes on women and girls.

Question 14 - At paragraph 7.26. and in Annex J we have identified the consequential legal impacts if non-binary people could obtain legal gender recognition using the proposed self-declaration system.

Are you aware of impacts we have not identified?

If you answered Yes, describe the impacts you have identified.

Chart 14: Question 14

6.47. The majority of respondents, 53% of those answering the question, were not aware of any additional impacts that the Scottish Government had not identified. Of the remaining respondents, 40% did not know and only 7% said they were aware of additional impacts.

6.48. Around 990 respondents went on to make a further comment, with around 750 of these respondents having answered that they were aware of impacts which the Scottish Government had not identified. The impacts which the Scottish Government had identified (and as set out in Annex J of the consultation paper) were in relation to: Family law; Marriage law; Registration law; and Victims of crime. Given that most of the further comments made addressed these impacts, not all respondents may have referred to the relevant section of the consultation paper or may have wished to comment on the impacts identified. Many comments also did not address the question specifically, but reiterated comments made at earlier questions and at Question 12 in particular.

Equality Act 2010, single sex spaces and women’s rights

6.49. Respondents sometimes referenced the impact the proposals could have on the sex-based protections provided by the Equality Act 2010. Also reflecting comments at Question 12 was the suggestion that it will be vital to consider the legal and other impacts of the proposals on single sex spaces and the women and girls using them. Around 3 in 10 respondents raised this issue, with respondents living elsewhere more likely to raise this issue than those resident in Scotland. Around 1 in 10 respondents made general points around the erosion of the safety and rights of women and girls.

6.50. Further comments by those highlighting these issues included that there are many reasons why, as a society and in certain circumstances, we choose to maintain different spaces and services for men and women, including for reasons of safety, privacy, dignity and fairness. Respondents sometimes suggested that the legal implication of recognising non-binary people would be that either a third set of services would be required, or services would need to be gender neutral, not least because otherwise a non-binary person who was male might otherwise opt to access female only services. Other comments focused on the safety of women and girls, including in single sex facilities or when undergoing medical treatment, if a non-binary person who was male was able to take on a work role that was otherwise reserved for a woman.

6.51. Some raising these issues were amongst the 1 in 10 respondents who made specific reference to the impact of the proposals on equalities law and the Equality Act 2010. The general concern was that the proposals could begin the erosion of protections based on sex as a protected characteristic. It was also suggested that any changes would have a major impact on the concept and legal meaning of sexual orientation and gay and lesbian identities, and thus have an impact on the sexual orientation protected characteristic. Specific areas of concern identified included:

• Sports, and in particular non-binary men having an unfair advantage if able to compete against biological women
• Women only shortlists or quotas and a concern that women could miss out on a range of key opportunities across politics, business and the public sector.

6.52. Connected to the latter concern, an LGBT Group respondent commented on an issue which they believed would not be affected by the proposals to amend the Gender Recognition Act 2004. They suggested that there would be no major impact within gender representations on public boards. They commented that the barriers to women in society are equally felt by trans women and non-binary people, and visibility of this population would support and benefit women’s rights, not hinder them. They also suggested that equal representation in this manner would combat other inconsistencies, such as the gender pay gap, by ensuring a meritocracy which combats ongoing discrimination against women and trans people alike.

6.53. They also welcomed the amendments to the draft Gender Representation on Public Boards (Scotland) Bill^[12], where the language was changed in line with the Equality Act 2010, protecting the representation of women and the removal of the quota for men, allowing accessibility for non-binary people.

Data collection, including crime statistics

6.54. Also as at Question 12, respondents raised concerns about the impact on the collection of sex-based data. Around 1 in 8 respondents highlighted this issue. Further comments included that introducing a non-binary option would mean that important sex-based data is no longer accurate. The use of this data to plan key services, including health-related services, was also highlighted.

6.55. In line with the Scottish Government’s assessment, the recoding of crime and gender-based offences was highlighted. There was a specific concern that introducing a non-binary gender could result in violence against women by biological men being under-recorded. It was also suggested that data about rates of pay and the pay gap, employment issues including the number of women entering the STEM professions,^[13] and educational attainment could also become inaccurate.

Other issues

6.56. Respondents also commented on a range of other issues in smaller numbers. These included:

• The implications for medical treatment and for ensuring that people receive the appropriate medical treatment based on their sex
• The cost to business and public services of providing a third set of non-binary services or making other necessary provisions and changes
• Agreeing that family, marriage and registration law will need to be considered. Respondents tended to not make any additional comment.

Other areas in which there are possible legal implications

6.57. Relatively few respondents suggested additional areas in which there may be legal implications which need to be considered. Those areas of law which were suggested included:

• Pensions, including where the state pension age remains dependent on sex
• Housing
• Employment
• Asylum, immigration, visas and waivers
• Those covering the armed forces or the Police
• Those covering disclosure or other safety-related checks such as those required for fostering or adoption
• Succession, and specifically the Succession (Scotland) Act 1964
• Any areas which affect the treatment of UK nationals when abroad.

6.58. Finally, it was suggested that legislation similar to the Interpretation Act 1978 (which amends all laws to include the feminine as well as the masculine gender) could be made to make legislative language more neutral and non-binary inclusive, without changing every law individually.