Non-Binary Equality Working Group recommendations: Scottish Government response

Healthcare

Transition-Related Healthcare

Recommendation 2

Transform the way transition-related healthcare is delivered in Scotland, moving to a system based on informed consent, desegregating services so that they are not exclusively accessed via specialist clinics, and designing services collaboratively with trans and non-binary people.

Decision

PARTIALLY ACCEPT

Scottish Government Response

Scottish Government recognises that gender identity services in Scotland are not able to adequately meet current need. In addition to publishing our NHS gender identity services: strategic action framework in December 2021 and committing funding to improve services, we are bringing together people with lived experience of these services, clinical specialists, NHS Boards, academics and LGBTI representative organisations in order to improve access to and delivery of these services.

However, although the Group has provided a definition of 'informed consent', the term can mean different things to different audiences. Our engagement has highlighted concerns that explicit references to principles of informed consent have the potential to be misinterpreted.

Our work to date to improve services continues to frame all improvement in the context of Realistic Medicine. This emphasises the importance of shared decision making throughout a person's care, between the health professional and patient.

Recommendation 3

Develop national standards for gender identity services that are accountable and enforceable.

Decision

ACCEPT

Scottish Government Response

The Group has noted Scottish Government's commitment to improve gender identity services and develop national standards with Health Improvement Scotland. The development of these standards will fully involve the voice of lived experience throughout their drafting. Health boards are expected to follow and remain consistent with all relevant standards set for clinical services as provided for NHS Scotland.

Recommendation 4

Fund transition-related healthcare sustainably, in the long term, and beyond the existing Gender Identity Clinics.

Decision

CONSIDER FURTHER

Scottish Government Response

Scottish Government is unable to comment on the content of future spending reviews. Further consultation with health boards will be required to embed a sustainable funding model for gender identity healthcare across NHS Scotland, beyond 2024.

Recommendation 5

Ensure that trans and non-binary people have equal access to transition-related healthcare, regardless of gender identity, gender presentation, race, disability, neurodiversity, financial resources, postcode, or other characteristics.

Decision

PARTIALLY ACCEPT

Scottish Government Response

The Scottish Government has been clear that all work to improve gender identity healthcare provision within NHS Scotland should be fully inclusive of the voice of lived experience, with service improvements fully embedding diverse voices and experiences in those processes.

Scottish Government have committed to ensure that improvements to gender identity services are "accessible to trans, including non-binary, people". Outwith the scope of this work are changes to processes already in place for raising concerns about clinical care. The Patient Rights (Scotland) Act 2011 and supporting legislation, provides a specific right for people to make complaints, raise concerns, make comments and give feedback. The Act also places a duty on NHS Boards to thoroughly investigate and respond to any concerns raised, to take improvement actions where appropriate and to share learning from the views they receive.

Recommendation 6

Require transition-related healthcare to meet referral-to-treatment standards.

Decision

PARTIALLY ACCEPT

Scottish Government Response

In the Bute House Agreement, Scottish Government committed to bring NHS gender identity services within national waiting time standards by the end of 2024. Our aim is that waiting times for these services will be reduced in line with our commitment to reduce NHS waiting times overall. As acknowledged by the Agreement, the NHS is experiencing significant challenges due to the pandemic and continues to be under the most severe pressure it has ever been in its 73-year existence.

This is why we developed the NHS Recovery Plan, which sets out key ambitions and actions to address the backlog of care across NHS Scotland by March 2026. Work to improve NHS gender identity services will be part of this broader strategic context of remobilisation and recovery of our NHS.

Mental Health

Recommendation 7

Make person-centred, specialised gender identity counselling services available for trans and non-binary people, separate from the assessment pathway for transition-related healthcare.

Decision

PARTIALLY ACCEPT

Scottish Government Response

The Scottish Government will ensure mental health services and support are person-centred, appropriately supporting transgender and non-binary people with a full range of issues including gender identity which may impact their mental health.

Recommendation 8

Fund mandatory training for mental health providers on trans and non-binary healthcare needs.

Decision

ACCEPT

Scottish Government Response

Fostering an inclusive culture in the NHS and supporting individuals from all backgrounds is the cornerstone to improving everyone's experience within NHS Scotland and to delivering the best care for the people of Scotland.

We are committed to ensuring that staff at all levels have the training they need to address any issues around equality, diversity and inclusion within the course of their work, and provide high-quality care that is tailored to individual needs and circumstances.

Recommendation 9

Conduct robust Equality Impact Assessments for mental health policies and actions, ensuring that they address the specific needs of trans and non-binary people.

Decision

ACCEPT

Scottish Government Response

The Equality Act 2010 (the 2010 Act) requires public authorities to have due regard to the need to: eliminate discrimination, harassment and victimisation; advance equality of opportunity; and to foster good relations between persons who share a relevant protected characteristic and those who do not. This is known as the Public Sector Equality Duty.

To help implement the Public Sector Equality Duty the Scottish Government introduced regulations in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (2012 Regulations) which include a requirement under to undertake Equality Impact Assessments (EQIAs) for new and revised policies and practices.

The Scottish Government is currently undertaking a review of the Scottish Specific Duties to ensure that they can be as effective as possible for delivering the Public Sector Equality Duty and reducing inequalities in society.

Primary Care

Recommendation 10

Review the use of a sex code in Community Health Index (CHI) numbers, and enable non-binary people to be recognised in medical records.

Decision

ACCEPT

Scottish Government Response

The Community Health Index (CHI) is a population register, which is used in Scotland for health care purposes. The CHI number uniquely identifies a person on the index. The register acts as the principle means of recording demographic information of individual patients in the NHS.

A major technical change programme is currently underway to replace the entire CHI system. The new CHI system will offer significantly greater flexibility and functionality in terms of how CHI is used – not just for health services, but across health and care as a whole.

Within that context, the Scottish Government is open to considering a review of sex codes within the system, noting the Chief Statistician's guidance on collecting data on sex and gender and the advice on data recording from National Records of Scotland, whilst also noting the cornerstone nature of the CHI system which feeds thousands of clinical systems. This means any changes need to be carefully considered to fully understand the knock-on impact on clinical systems and process across NHS Scotland.

Recommendation 11

Fund mandatory training for primary care providers on trans and non-binary healthcare needs.

Decision

PARTIALLY ACCEPT

Scottish Government Response

The Scottish Government provides funding for the delivery of medical education and training. However, we are not able to mandate the contents of specific training for primary care providers on trans and non-binary healthcare needs, as each medical school in Scotland is responsible for developing its own curriculum. Pre-qualification training programmes are a reserved matter but GPs can be supported to take up training post-qualification.

The Scottish Government and NHS Education for Scotland are currently reviewing and revising Equality, Inclusion and Diversity training for all NHS staff. We will continue to engage with main stakeholders including the Royal College of GPs and those with lived experience on how best to address trans and non-binary healthcare needs.

Recommendation 12

Desegregate treatment pathways so that interventions that are available via a GP referral for cisgender patients are similarly available via a GP referral for trans patients.

Decision

CONSIDER FURTHER

Scottish Government Response

GPs will make different referrals for different patients, based on clinical need, and the reasons for this might not always be obvious to those making the comparison. We need more time to look at further research and engage with relevant stakeholders with lived experience to ensure treatment pathways for trans patients are fair.

We are expanding the wider multi-disciplinary workforce in primary care which means referrals can now be made by clinicians other than GPs. These referrals may be to other areas of primary care, such as musculoskeletal physiotherapy, or to parts of the secondary care sector depending on local arrangements.

Fertility Preservation

Recommendation 13

Ensure that trans and non-binary people have equal access to fertility preservation treatments, including access to the information needed to make informed choices.

Decision

PARTIALLY ACCEPT

Scottish Government Response

Scottish Government currently has a working group looking at the provision and guidance for access criteria for fertility preservation of all patients in Scotland. This work paused due to COVID 19 but will restart soon. Fertility preservation is the storage of gametes (sperm, eggs) and occasionally embryos where an individual's fertility is clinically assessed to be at risk. Fertility treatment includes the use of stored or fresh gametes and embryos to improve the chances of the conception of a baby.

All eligible patients in Scotland who may need fertility preservation treatment at one of the 4 NHS Assisted Conception Units (ACUs) must be referred via a specialist service, i.e. oncology, gynaecology or a gender identity clinic. No individual is referred to fertility preservation services by a GP. ACUs will not accept referrals for fertility preservation from GPs as specialists clinics are best placed to judge when a referral for fertility preservation is clinically appropriate for individual patients.

Pathways for health professionals and information leaflets for patients on fertility preservation including trans and non-binary are being developed within the wider work on fertility preservation.

Recommendation 14

Work with the UK Government to provide clarity to trans and non-binary people about their legal rights regarding fertility preservation, access to assisted reproduction services, and status when creating families, and work to prevent discrimination in realising these rights.

Decision

PARTIALLY ACCEPT

Scottish Government Response

Access to fertility treatment is devolved and all couples irrespective of gender who meet the access criteria will be eligible to receive treatment.

The subject-matter of the Human Fertilisation and Embryology legislation is reserved. The Scottish Government will continue to liaise with the UK Government and the Human Fertilisation and Embryology Authority on relevant matters. Any changes to terminology used in the Human Fertilisation and Embryology legislation is a matter for the UK Government.

In Scotland, the form of the birth certificate refers to the person who gave birth as the "mother" and the other parent as "father/parent". The form of the birth certificate is a devolved matter. We have no plans to change the form of the birth certificate.

The form of the birth certificate is in line with the terminology used in Human Fertilisation and Embryology legislation. It also reflects that, in Scotland, the mother of a child automatically obtains parental responsibilities and rights.

Recommendation 15

Fund mandatory training for fertility preservation providers on trans and non-binary healthcare needs.

Decision

PARTIALLY ACCEPT

Scottish Government Response

The Scottish Government is working with NHS Education for Scotland to review and revise existing Equality, Inclusion and Diversity training for all NHS staff. We will continue to engage with core stakeholders and those with lived experience on how best to address trans and non-binary healthcare needs. Engagement with core stakeholders will take place with NHS Education for Scotland as the training is reviewed and revised.

Scottish Government will additionally ask Fertility Scotland, the National Strategic Network, to host training webinars once the Scottish Government working group looking at the provision of fertility preservation treatment in Scotland has completed its work.