Letter to Labour and Conservative parties

The following joint letter was sent to the leaders of Scottish Labour and Conservative in response to their stated intention to table amendments to the Gender Recognition Reform Bill. The letter was covered in an article in the Scottish Daily Express.

---

Dear Mr Sarwar and Mr Ross,

In the Stage 1 debate, members speaking on behalf of both your parties indicated that they would seek to address some of the Gender Recognition Reform (Scotland) Bill’s deficiencies at Stages 2 and 3 of the legislative process. We are writing to you now to set out some key areas of concern. 

All of us have previously made clear our deep-seated concerns about the proposals contained in the Bill. So numerous are the Bill’s deficiencies that we remain unconvinced that it can be ‘fixed’. To do so would, at the very minimum, require the introduction of much stronger safeguarding mechanisms and retention of the current age limit.     

Both your parties also have representatives on the Equalities, Human Rights and Civil Justice Committee who have had access to the full range of evidence. As self-supporting groups, we have tried over a long period – often with great difficulty and facing extraordinary hostility – to draw political attention to where the largest risks lie from legislating badly here, as we see them. As the Bill has progressed, we have suggested ways to avoid some of the most obvious potential worst effects. None of us, however, thinks a handful of amendments to the Bill you now have before you is likely to create good law. The Scottish Government’s process here has been too flawed, for too long, for that.

It may be that there are other areas we have overlooked, given our limited resources. We trust that your party researchers have carefully combed the Bill and identified these. 

Interaction with Equality Act 2010 (EA2010)
The Gender Recognition Reform 2004 – even before it is amended – has already had an impact on certainty around protections in law for women. For example, a woman seeking to make a sex discrimination claim under EA2010 now risks her claim being extinguished if her comparator is a man who has acquired a female Gender Recognition Certificate (GRC). The Scottish Government will go to court next week to argue that men who have acquired a female GRC should be treated as women under EA2010 so that they can be eligible to benefit from measures intended to improve female representation on public boards.

As regards the legal effects of a GRC for the purposes of operating single-sex spaces and services as permitted by EA2010, the law here is contested (see this briefing, which was sent to all MSPs in May). Absolute clarity is required on the face of the Bill that a GRC does not change a person’s sex for the purpose of the Equality Act if this situation is to be remedied.

If Parliament deems sex not to be a biological term and accepts that a GRC changes someone’s sex under the EA2010, for the first time the protected characteristic ‘woman’ will include non-dysphoric males and 16/17-year-old males – in Scotland only, hence changing a protected characteristic.

GRA interaction with other legislation
At no point has the Scottish Government produced a complete list of all the legal contexts where a GRC changes an individual’s legal status from male/man to female/woman. MSPs are flying blind on the full range of contexts where reform could have an effect on women. Resolving the Equality Act issue above would deal with the most widely used measures governing single-sex spaces and anti-discrimination protection. Even so, it cannot be guaranteed that there are no further contexts in which a large increase in the number and diversity of people able to assert the legal right to be treated as female or a woman would be problematic.

Retention of medical oversight
The 2004 Act was conceived as a response to what was thought to be a very small number of individuals suffering from gender dysphoria. The Bill provides that anyone aged 16 or over will be able to acquire a GRC in the opposite sex, including individuals who would not currently be eligible for treatment of gender dysphoria on the NHS. If the Bill is passed in its current form, it will be easier to change the sex marker on someone’s birth certificate than it is to change it on a British passport (which requires a doctor’s letter).

By removing all medical oversight and making acquisition of a GRC in the opposite sex a matter of self-declaration, MSPs will be sending the message that any man who declares himself to be a woman should be seen and treated as such by society at large. No consideration has been given to the impact of sending such a message on social norms that govern the operation of many day-to-day sex-segregated spaces and activities, which in practice are managed by social convention, albeit underpinned by law. Public toilets are often raised as an issue here, and trivialised, but the deterrents on men from entering those intended for women are not trivial, and toilets are not the only relevant spaces here.

Age of eligibility
The United Nations defines a child as anyone under the age of 18. Research published by the Scottish Sentencing Council makes clear that cognitive development in human beings continues into the mid-20s. The interim report of the Cass Review is clear that social transition is not a neutral act. Many clinicians are concerned that state recognition of a change of legal gender might cause a child to hasten steps towards irreversible and unevidenced medical treatments. Reducing the age of eligibility for GRCs to 16 and 17-year-olds will also introduce new challenges for the ability of schools to operate single-sex spaces, such as toilets, changing rooms and accommodation on school trips, and in ordinary information-sharing in the interests of safeguarding .

Section 22
The criminal offence of disclosing someone’s GRC status is already having a chilling effect on public policy. For example, NHS Lothian has stated that it cannot guarantee a female healthcare provider to someone who requests one, because of section 22 of the 2004 Act. The Employment Lawyers Association has called for its repeal. 

Sex Matters has previously highlighted the potential for the reformed Act to be a vehicle for identity fraud when the stringent privacy protections under section 22 are combined with the ability of individuals to acquire a birth certificate in the opposite sex without any safeguards.

Overseas route – lack of evidence
The process of gender recognition will be opened up to anyone from outside the UK who claims to have changed their sex in law in another jurisdiction. No evidence will be required. There seems to have been no careful assessment of any risk of unintended consequences from this. 

Lack of definition of ‘acquired gender’
Applicants for GRCs are expected to have ‘lived in their acquired gender’ for three months, but the Scottish Government refuses to define what is meant by this. Nor is any evidence of this required.

Lack of provision for detransitioners
There is no provision in the Bill for those who wish to reverse a change in their legally recognised gender. Increasing numbers of young people who regret having transitioned are coming forward and finding that they cannot revert to legal recognition of their birth sex.

Ill-conceived offence of false declaration
The Scottish Government cites as a safeguard a new criminal offence of making a false declaration of intent to ‘live in an acquired gender’, but cannot say how this would be demonstrated in court.

Impact on marriage and civil partners
Neither the Scottish Government nor the EHRCJ Committee has considered the potential impact of the legislation on the spouses or partners of individuals who seek a GRC. We think this a serious omission. None of us is resourced to review the lengthy and complicated material in the Bill on this.

Monitoring impacts on women
In September 2021, the Scottish Government Chief Statistician issued guidance to all Scottish public authorities advising that they need not routinely collect data on biological sex. It will therefore be impossible to monitor the impact of the legislation on women.

Unresolved cross-border issues
As the Scottish leaders of UK parties, you will undoubtedly be concerned about the cross-border anomalies that will arise should this legislation pass. There remain many unanswered questions, for example:

• Will an individual be expected to prove that they are ordinarily resident in Scotland at the time they make their statutory declaration? If so, how?
• If an individual changes their legal gender via the new Scottish system and then moves to another part of the UK, will their legal gender be recognised there? For example, how does this work for someone whose employer is based in another part of the UK but who is themselves living in Scotland, or who moves within the UK while retaining the same employer?
• Will it be possible for an individual to acquire both a Scottish GRC and still, if they meet the conditions, an old-style GRC, which is recognised across the UK?
• If a 16 or 17-year-old child changes their legal gender in Scotland but later moves to a school elsewhere in the UK, how should the school respond? How will schools be kept informed about the position on recognition of Scottish GRCs outside Scotland?
• How will this work in the context of reserved functions? For instance, when someone seeks to change the sex marker on their British passport, HM Passport Office currently accepts either a doctor’s letter or a GRC as evidence. Will HM Passport Office accept a Scottish GRC obtained without medical oversight as evidence?
• What arrangements will apply for spousal consent for couples where both live in other parts of the UK where one partner is eligible for a Scottish self-declared GRC?
• What arrangements will apply for spousal consent for couples who have separated when the one living in Scotland obtains a Scottish self-declared GRC?

It is obvious that using devolved powers to replace a UK system here is complicated. The Scottish Government, however, has been dismissive and careless around cross-border questions from the start. One result is that it is far from certain that the centrepiece of the legislation, the ability to obtain a new birth certificate, will be available in many cases: without UK Government agreement, anyone born elsewhere in the UK will be unable to make that change. 

We are not sure how widely understood this is. It was not an inevitable outcome of reform. The Scottish Government has chosen from the start to push forward unilaterally a radical model of reform rather than exploring a less extreme approach that saw securing cross-border recognition as a priority. Other parties in the Parliament are now being asked to give cover to this choice, and all its consequences.

In developing the Bill, the Scottish Government relied on a limited set of interests. Similarly, the Equalities, Human Rights and Civil Justice Committee heard overwhelmingly from supporters of the Bill in its oral evidence, whilst its short timetable precluded proper consideration of the 11,000 responses submitted to its call for evidence. Neither the Scottish Government nor the Committee has taken seriously the concerns raised about the impact of the Bill on women and girls, faith groups, people with disabilities, detransitioners or concerned parents.    

It is widely speculated that there will be a legal challenge to this legislation if or when it is passed. It is concerning to hear lawmakers speak of this as inevitable. Lawmakers need to be very clear that the process of bringing a challenge in the courts is always a last resort for campaigners, involving considerable stress and financial risk. Contributors to crowdfunding in this area are typically multiple small donors, many likely to be on incomes at or below the national average. It is increasingly common now in Scotland to see public discussion of the potential for legal challenge of a Bill well before the parliamentary process is complete. Trust is eroding in the process of legislative scrutiny at Holyrood. This cannot be healthy. 

It is incumbent upon you and your colleagues as lawmakers to do your utmost to minimise the pressure on citizens to expose faulty legislation in the courts. We hope you will bear this in mind as you consider your parties’ approach to the Bill as it continues its passage through parliament.

Signed:

Copies:  Jackie Baillie, Deputy Leader, Scottish Labour
Meghan Gallacher, Deputy Leader, Scottish Conservatives