The Status of Women In Scotland – Women’s Services and the Genuine Occupational Requirement

UN Women invited submissions to the Commission on the Status of Women with information relating to alleged violations of human rights that affect the status of women in any country in the world. Our full submission can be found here but we have also turned each section into the following stand alone blog pieces:

Gender Representation on Public Boards Act I All-Women Shortlists I Census and Data Collection on Sex I Hate Crime and Public Order Act I Prisons I Women’s Services and the Genuine Occupational Requirement I Conclusions

  1. According to the European Union’s Directive 2004/113/EC,1 transposed in the  United Kingdom in December 2007, differences in treatment between women and men are permissible when they are justified by a legitimate aim. The directive states that “A legitimate aim may, for example, be the protection of victims of sex-related violence (in cases such as the establishment of single-sex shelters), reasons of privacy and decency (in cases such as the provision of accommodation by a person in a part of that person’s home), the promotion of gender equality or of the interests of men or women (for example single-sex voluntary bodies), the freedom of association (in cases of membership of single-sex private clubs), and the organisation of sporting activities (for example single-sex sports events).” In accordance with the Directive, the UK’s Equality Act permits the difference in treatment, and the exclusion of male sex, in the context of services and establishments  providing assistance to female victims of violence.
  1. Despite these permissible and justifiable exemptions, understood in the European law as vital for eliminating violence against women and for achieving equality between women and men, the overwhelming majority of domestic violence shelters and rape crisis centres in Scotland do not enforce them. Most of these shelters and rape crisis centres are funded by the Scottish Government, however, the Government has no policy or monitoring mechanism to ensure that single-sex services are available for female victims of violence, including the victims of domestic violence, sexual violence, rape and trafficking for sexual exploitation. On the contrary, in the governmental guidelines on funding for shelters the following requirement was stated:

    To be eligible for funding, applicants are required to demonstrate the following in their application…Ensure that your service is inclusive to lesbian, bisexual, trans and intersex (LBTI) women. An LBTI Inclusion Plan should be submitted along with your application.2

    This condition is extremely problematic to women’s organisations who are now compelled to be inclusive of transwomen (both with and without Gender Recognition Certificates) or possibly forgo access to essential funding if they wish to remain women-only. After For Women Scotland raised this issue3 the Minister Christina McKelvie stated “grant recipients…can therefore of course use the exceptions for single-sex services4 – to date, however, the transwomen-inclusive condition has not removed from funding criteria and remains a deterrent to organisations thinking about applying.
  1. A typical Equality and Diversity Monitoring Form5 appended to a job application at the Government funded Rape Crisis network explicitly excludes the protected characteristic of sex, replacing it with a non-protected “gender identity”, when it asks the applicants the following question:

    How would you describe your gender identity?
    Man (including female-to-male trans man)
    Woman (including male-to-female trans woman)
    In another way (for example, non-binary)
    In another way, please describe:_______
    Prefer not to say

    This contradicts UK Equality law,6 as does the Scottish Government’s own policy on violence against women which entirely omits mention of the protected characteristic of sex: “The definition [of violence against women] includes women and girls across all protected characteristics defined by equality legislation – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief and sexual orientation.”7
  1. Under the Equality Act, the Genuine Occupational Requirement in Schedule 9 Part 1 allows employers to restrict certain roles to applicants who have a particular protected characteristic where, having regard to the nature of the work, there is an occupational requirement and it is a proportionate means of achieving a legitimate goal.8 This means that some jobs can be restricted to female only candidates as defined under the Act.
  1. EHRC guidance states that: “In UK law, ‘sex’ is understood as binary, with a person’s legal sex being determined by what is recorded on their birth certificate. A trans person can change their legal sex by obtaining a GRC. A trans person who does not have a GRC retains the sex recorded on their birth certificate for legal purposes.”9
  1. This means that if employers have reason to restrict a role to a member of one sex they are allowed to legally discriminate. However, if they knowingly allow some members of the opposite sex to apply, they risk falling foul of the law by indirectly discriminating against other members of that sex. The Scottish Violence Against Women sector routinely cite Schedule 9 in order to reserve jobs for women. However, they have, in practice, allowed males who do not fall into the legal category and who self-identify as women to apply.
  1. This means that, currently, at least one major Scottish rape crisis centre (Edinburgh Rape Crisis Centre) is led by a male who self-identifies as a woman and is without a Gender Recognition Certificate. This position was advertised as open to women only under Schedule 9 of the UK Equality Act and the principle of sex-based exceptions therein.10 However, the person who obtained this role readily admits to not having obtained the legal certificate of gender reassignment.11
  1. Having been so open about their trans status there is no reason to assume the employer was unaware of this. Indeed in evidence to a Parliamentary Committee in 2015, this individual argued that the “General Occupation Provision in recruitment is discriminatory to transsexual people especially trans women. I genuinely believe that there is no space for it in the gender based violence sector and that it has no place in violence against women work. I was unaware of its existence until a few weeks ago. I have worked in the violence against women sector since 2005 and have never known for it to be used.”12 This, however, is untrue as all jobs advertised under Schedule 9 are invoking this exception. That it has long been misapplied is problematic for women who believe they are accessing a single-sex space, as is the stated belief that women who have suffered male violence might not require female only services.
  1. For Women Scotland had inquired with the regulator EHRC whether recruiting a male in the organisation providing services to the most vulnerable women in Scotland was lawful, however, we did not receive a satisfactory response.13 Similarly, at the time of receiving their letter another position at the same Rape Crisis Centre is being advertised, again citing Schedule 9 but undermining this by including people who are not regarded as women in the UK Equality Act and thus opening up the potential risk of discriminating on basis of sex.14
  1. Additionally, the Scottish Government’s Strategy to Eradicate Violence against Women and Girls15 is not in line with the major international legal instruments such as CEDAW, the European Directives and the UK Equality Act, as it entirely eliminates the legal provisions protecting women from sex-based discrimination by replacing the protected characteristic of sex with gender and/or gender identity. Despite the fact that the strategy states that its definitions are based on those elaborated in the United Nations Declaration on the Elimination of Violence Against Women (1993), where gender-based is understood as a function in the sex-based hierarchical system of power to maintain men’s dominance over women, the strategy ignores the internationally accepted definition when it states that:

    Along with their gender, women and girls have other protected characteristics that increases their level of risk of experiencing violence and abuse”.16

    There were 1,901 rapes or attempted rapes recorded by the police in Scotland during 2014-15. Where the victim’s gender is known, 95% (1,278 out of 1,349) rapes or attempted rapes recorded by the police in 2014-15 had a female victim”.17
  1. Considering the statistics that the vast majority of individuals of male sex who self-identify as women, transgender or non-binary, do not undergo any medical treatment and and retain the anatomy of their birth,18 in practical terms, it means that any female victim seeking access to a shelter or rape crisis centre in Scotland, is at risk of secondary victimisation and re-traumatisation by being confined in a space supposed to provide safety to her, with persons representing the group to which their perpetrators belong, ie. males.
  1. Guidance for women’s shelters written by LGBT Youth Scotland was, for a considerable period, posted on Rape Crisis Scotland’s website until, after representation for concerned survivors, it was removed. The guidance erroneously claimed that it was not legal to restrict a service to one sex: “People who provide separate and single-sex services, such as refuges, can only provide a different service or refuse a service to transsexual women service user under exceptional circumstances and these circumstances depend on the facts of the case – this means that ‘blanket’ bans or policies barring people from accessing services are not acceptable.19 This is a straight misrepresentation of the Equality Act, where provision is made for single-sex services with the following example given in the Explanatory Notes: “A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.20
  1. MBM Policy undertook a more detailed examination of the legal misrepresentations in the guidance,21 along with the troubling suggestion that if women objected to the presence of obviously male people in a shelter for vulnerable women, this was no reason to move the trans identified male and they “would work to educate other service users – much in the same way that we would if we received comments regarding other service user’s ethnicity, religious affiliation or sexual orientation.”
  1. Similarly, the Supporting Transgender Young People Guidance for Schools in Scotland,22 which was undertaken by LGBT Youth carried the logo of the Scottish Government until the women’s rights organisation Women and Girls in Scotland published their Children’s Rights Impact Assessment23 (something the Government and LGBTY has failed to do). They found that the guidance breached the human rights of girls multiple times. On 07 March 2019, Ministers had a meeting during which the decision was made to produce updated guidance. “The basis of this decision was Ministers’ view that guidance that risked potentially excluding other girls from female-only spaces was not legal.” 24 The Minister, Shirley-Anne Somerville, announced in June 2019 that the guidance would be replaced.25 However, to date, this has not been done and illegal, discriminatory guidance is still being used in schools. Moreover, despite the failure of LGBT Youth to produce legal material, the Government continues to seek their involvement in producing new material and to rely on their advice.26
  1. Cumulatively, these omissions of sex-based discrimination and the replacement of the category of sex with gender and/or gender identity in the legal and semi-legal instruments produced by the Scottish Government make it impossible for the Government to effectively implement and/or monitor its own policies aimed at ending men’s violence against women and, as such, they present a pattern in the Scottish Government’s actions to abdicate its responsibility to protect women from sex based discrimination.


  1. Directive 2004/113/EC on Implementing the principle of equal treatment between men and women in the access to and supply of goods and services
  2. For Women Scotland – Funding Conditions of organisations working in VAWG sector
  3. Draft Budget Scrutiny – Submission by For Women Scotland
  4. Letter from Christina McKelvie to Equalities and Human Rights Committee
  5. Edinburgh Rape Crisis – Equality and Diversity Monitoring Form
  6. In the UK Equality Law protected characteristic is gender reassignment and it is a separate ground for discrimination from that of sex. The Equality Act also allows the exclusion of persons with a protected characteristic of gender reassignment, on the basis of sex, particularly in the context of service provision to female victims of violence:  Schedule 3, Part 7, 26-28 and Schedule 9, Part 1, 1 in the UK Equality Act
  7. The Equally Safe Strategy omits the UK Equality Act’s protected characteristic of sex. At the same time it rightfully quotes the protected characteristic of gender reassignment, however it omits the principle of exception on the basis of sex, and, replaces this characteristic in the overall policy Equally Safe: Scotland’s strategy to eradicate violence against women, page 13
  8. Equality Act 2010, Genuine Occupational Requirement, Schedule 9, Part 1
  9. EHRC, 30 July 2018, “Our statement on sex and gender reassignment: legal protections and language”
  10. Job Advert for CEO, Edinburgh Rape Crisis Centre, March 2021
  11. Copy of a now deleted video podcast with Pink News
  12. Written evidence submitted by Mridul Wadhwa to the Transgender Equality Enquiry, 2015
  13. Response from EHRC, 28 July 2021
  14. Job advert for COO, Edinburgh Rape Crisis Centre, July 2021
  15. Equally Safe: Scotland’s strategy to eradicate violence against women
  16. Ibid. page 9
  17. Ibid. page 13
  18. Fair Play For Women, 22 July 2018 “The vast majority of male-born transwomen still have a penis”
  19. Stronger Together: Guidance for women’s services on the inclusion of transgender women
  20. Equality Act, Explanatory Notes, Part 7, Para 26
  21. MBM Policy, 22 February 2019, “The case for due diligence: assessing and owning policy and practice”
  22. LGBT Youth Scotland, Supporting Transgender Young People Guidance for Schools in Scotland
  23. Women and Girls in Scotland – Children’s Rights Impact Assessment
  24. Updated guidance to support transgender pupils in schools information: FOI release
  25. Statement on Gender Recognition- Shirley-Anne Somerville
  26. For Women Scotland, 03 December 2019, “LGBT Youth Scotland – Freedom of Information Request”

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Gender Representation on Public Boards Act I All-Women Shortlists I Census and Data Collection on Sex I Hate Crime and Public Order Act I Prisons I Women’s Services and the Genuine Occupational Requirement I Conclusions