Non-Binary Equality Working Group recommendations: Scottish Government response

Data and Law

Data Collection in Research

Recommendation 16

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

Decision

DECLINE

Scottish Government Response

The evaluation of Scotland's Census 2022 will make recommendations for future censuses.

The questions on sex and trans status used in Scotland's Census 2022 and for the core surveys allow non-binary respondents to record they are non-binary.

The Scottish Government's core surveys have adopted the question included in the Chief Statistician's guidance for public bodies.

The Office of the Chief Statistician will continually review the existing guidance to ensure that it remains fit for purpose.

Our priority is to allow time for the existing guidance to be implemented in order to consider the impact existing questions have had.

Recommendation 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.

Decision

CONSIDER FURTHER

Scottish Government Response

National Records of Scotland (NRS) are developing classifications to use based on the write-in responses to the Trans Status or History question. These classifications will include Non-Binary as a separate category. NRS and the Scottish Government will work together to ensure consistent use of categories when the Census data and data from the three major household surveys start to become available.

Work is underway to plan Census outputs and this will include an analytical report on the trans status or history question. NRS will consult with users to make sure these plans meet user needs and help support research / policy making etc.

Officials in NRS and the Scottish Government have discussed plans to work together when the Census data and data from the three major household surveys start to become available. We expect that this work will look at coding the open-ended responses to the trans status question using a common coding frame, and aiming to ultimately publish the coded responses provided there are sufficient numbers to do so.

The level of detail published will be dependent on the number of responses provided to this voluntary question to ensure that data published is not disclosive and that results are robust. The scope of this work will become clear when the data is available.

Recommendation 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.

Decision

ACCEPT

Scottish Government Response

The Scottish Government is committed to improving the equality evidence base, and in April 2021 launched the Equality Data Improvement Programme (EDIP). The EDIP includes several actions to fill gaps in the equality evidence base, including for the protected characteristic of gender reassignment. The Equality Analysis Team will be publishing the next iteration of Scotland's Equality Evidence Strategy at the end of this year and stakeholders will have the opportunity to shape improvement actions for inclusion in the strategy later this summer.

The Scottish Government also regularly reviews the equality evidence base to facilitate evidence-based policy making. Where a gap in the equality evidence base is identified and there is a requirement to fill it, Scottish Government analysts will work closely with policy colleagues to scope options for new evidence gathering.

Data Collection by Service Providers

Recommendation 19

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

Decision

PARTIALLY ACCEPT

Scottish Government Response

The Scottish Government intends to produce factual public-facing guidance on how to change your name in Scotland. A number of bodies have said that more public-facing guidance would be helpful. We would aim to publish this guidance by the end of 2022.

Further consideration is needed on providing guidance to public bodies and service providers on their procedures for recording names. Public bodies and service providers (in the private, public and voluntary sectors) will vary and have different needs and requirements. This further consideration may take some time and is unlikely to be completed before 2023.

Recommendation 20

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

Decision

ACCEPT

Scottish Government Response

This has been achieved by the publication of the Chief Statistician's Guidance for public bodies on the collection of data on sex and gender in September 2021.

This guidance makes it clear that bodies should carefully consider their data needs, and collect only the data they need to improve services and promote equality.

The Office of the Chief Statistician will continue to engage with public bodies about the application of the Chief Statistician's guidance.

Recommendation 21

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

Decision

CONSIDER FURTHER

Scottish Government Response

This recommendation spans multiple administrative systems and is a significant technical undertaking. More time is required to evaluate whether and how it can be achieved.

Sex and Gender in Data Guidance in Scotland

Recommendation 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.

Decision

CONSIDER FURTHER

Scottish Government Response

The Office of the Chief Statistician will continually review its existing guidance, although our intention is to allow time for the guidance to be implemented before considering any changes.

This review process will be based on evidence available for making any changes, and will take into account the views of trans and non-binary people.

The recommended questions in the Chief Statistician's Data Guidance currently allow non-binary respondents to record they are non-binary.

Recommendation 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.

Decision

CONSIDER FURTHER

Scottish Government Response

The Office of the Chief Statistician will continually review its existing guidance, although our intention is to allow time for the guidance to be implemented before considering any changes.

This review process will be based on evidence available for making any changes, and will take into account the views of trans and non-binary people.

Legal Recognition and Gendered Law

Recommendation 24

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

Decision

PARTIALLY ACCEPT

Scottish Government Response

The Scottish Government decided not to extend legal gender recognition to non-binary people at this time as part of the recently introduced Gender Recognition Reform (Scotland) Bill, however this is a developing area within our society and internationally and we agree that further work is required to explore how non-binary legal recognition would work for Scotland.

The Scottish Government will therefore commission research on non-binary legal recognition and will consider the outcomes of the research to inform our view in this area. Given the current need to focus on taking forward the Gender Recognition Reform (Scotland) Bill this will likely be a longer term commitment.

Recommendation 25

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

Decision

ACCEPT

Scottish Government Response

Parliamentary Counsel Office has already published Guidance which includes a section on when gender-neutral drafting is appropriate in drafting primary legislation.

This guidance does state that, in some exceptional cases, actual gender specificity need not be concealed. Drafters aim to produce legislation that is clear and accessible, and takes account of the context in which it is to operate.

In some (exceptional) cases, we may consider it necessary to use gendered language in order to achieve that. Such areas would be considered carefully on a case-by-case basis, and the broader text of this recommendation acknowledges that in many cases it is both necessary and important for the law to be gendered.

Recommendation 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.

Decision

CONSIDER FURTHER

Scottish Government Response

There is no national ID card scheme in Scotland, digital or otherwise, and Ministers have explicitly stated that we do not intend to have one. The National Entitlement Card (NEC) scheme is used to demonstrate entitlement for certain services nationally and locally. The NEC is used as the Young Scot card and for free concessionary bus travel (including the new under 22s scheme). We understand from Young Scot that gender attributes are not included on the physical Young Scot card.

We are considering the recommendations of the Group in the development of the Scottish Government digital identity service – which aims to enable people to access the services are benefits they are entitled to online. We will consider the Group's recommendations as we implement the scheme, and we are also applying the relevant findings from the supporting equalities impact assessments.

The scope of the recommendations for external partners who issue identity documents, including UK Government, will also be considered. However, we need more time to review the implications with external partners, who we do not have an ability to direct. Nevertheless we agree to consider this matter further and articulate how that engagement will occur.