Equalities regulator must clarify position on gender recognition reform, says Scottish Human Rights Commission

The Scottish Human Rights Commission (SHRC) has challenged the UK equalities regulator to set out its reasons for not supporting proposed reforms to the Gender Recognition Act.

Barbara Bolton, head of legal and policy at the SHRC, said the body’s analysis had not found any evidence to support the Equality and Human Rights Commission’s (EHRC) call to temporarily pause reforms.

The EHRC’s chair, Kishwer Falkner, wrote to the Scottish Government in January raising concerns about the “potential consequences” of a move to self-declaration for trans people seeking to change their legal gender.

She said that “more detailed consideration is needed before any change is made”.

But Bolton, speaking to Holyrood’s equalities committee on Tuesday, said the “burden” was on the EHRC to provide more information.

She said: “We have not been able to identify an equalities law analysis that underpins their current position, and likewise we’ve not been able to identify a human rights analysis that underpins their current position.”

MSPs are considering the Gender Recognition Reform Bill at stage one.

There has been some opposition to the bill owing to concerns about how it interacts with the Equality Act in terms of provision of single sex spaces, including rape crisis centres, as well as possible impacts on data collection, trans inclusion in sport and the justice system.

But Bolton told the committee that these objections were not specific enough to justify not removing barriers which trans people face in obtaining a gender recognition certificate.

She explained any barriers must be “necessary” and “proportionate” in response to specific concerns, but the SHRC had not been able to identify “any objectively-evidenced real and concrete harm that’s likely to arise” from the passage of the bill.

She added: “The majority, if not all, of the concerns that have been outlined do not appear to have a relationship with the proposals that are set out in this bill. That’s our assessment and that’s why we continue to support the bill.”

Guidance published by the EHRC in April confirmed that “any reform of the Gender Recognition Act will not erode the special status” of single-sex services.

But the committee was told last month when representatives of the EHRC gave evidence that there was a “lack of certainty about the practical consequences” of the reforms in other areas.

Victor Madrigal-Borloz, the UN expert on protection against violence and discrimination based on sexual orientation and gender identity, also told MSPs on Tuesday that acknowledging risk of abuse should not prevent legislators from taking a human rights-based approach.

He said: “Any right is always inherently accompanied by the possibility of abuse. Acknowledging the evidence in relation to abuse to ensure duly preventative measures, for example, is part of a human rights-based approach. What is not part of a human rights-based approach is to withdraw the human right.”

He added that ensuring the process to legally change gender was as fast and accessible as possible would be “key” in addressing discrimination against trans people.