Equality watchdog warns Scottish Government over self-ID plans

Plans to reform gender recognition laws in Scotland need much “more detailed consideration,” the UK’s equalities watchdog has warned. 

In a letter to Social Justice minister Shona Robison, the Equalities and Human Rights Commission (EHRC) raised concerns over the “potential consequences for individuals and society”. 

LGBTI campaigners hit out at the body, accusing them of “failing to stand up for equality for trans people”. The legislation is, they added, already "one of the most consulted-on policies of all time".

The Scottish Government’s Gender Recognition Act Reform bill is set to be published in a matter of weeks. 

The proposal - which will make it easier for a person to change their legally recognised sex - was a key part of the SNP’s manifesto, with the party promising to address concerns “through informed and respectful discussion.”

Currently, under the 2004 Gender Recognition Act, trans people seeking a gender recognition certificate must have a formal diagnosis of gender dysphoria and live in their “acquired gender” for two years. 

The Scottish Government first started formally reviewing the legislation in November 2017, with a vow to bring it into line with “international best practice”.
 
That led to ministers proposing a self-declaration system, ending the need to provide medical evidence and proof of living in the acquired gender for two years.

However, there have been concerns raised by campaigners for sex-based rights over the impact of the new legislation on the single-sex exceptions in the Equality Act. They also expressed fears the change in law could potentially place women in danger from men who might abuse a self-identification system.

The First Minister has previously dismissed women’s concerns as "not valid".
 
In her letter to Robison, EHRC chair, Baroness Kishwer Falkner, said: “As you know, some lawyers, academics, data users and others have increasingly expressed concerns about the potential implications of changing the current criteria for obtaining a Gender Recognition Certificate (GRC).

“These concerns centre on the potential consequences for individuals and society of extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point. The potential consequences include those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia.

“As such, we consider that more detailed consideration is needed before any change is made to the provisions in the Act.”

The EHRC continued: "We otherwise consider that the established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people and the ability for them to obtain legal recognition of their gender, collectively provide the correct balanced legal framework that protects everyone.

"This includes protecting trans people from discrimination and harassment, and safeguarding their human rights. Our focus is on continuing to seek opportunities to use our powers to support litigation to protect trans people’s rights.”

Vic Valentine, manager of Scottish Trans, said the legislative process already meant there would be more detailed consideration.

He said, “Reform of gender recognition is one of the most consulted-on policies of all time, with two comprehensive public consultations by the Scottish Government since 2017. The draft bill was fully consulted on a year ago, and everyone had their say. The EHRC itself responded to both public consultations, supporting reform.

“There will of course be much more detailed consideration of the bill as it goes through the Scottish Parliament.”

Tim Hopkins, director of LGBTI campaign organisation, the Equality Network hit out at the board: “The EHRC is not independent of government, but has its Board directly appointed by Liz Truss and the UK Government. We assume that their appointees are responsible for this letter and for failing to stand up for equality for trans people.

“We do not need UK Government appointees telling us in Scotland how to legislate in devolved areas, and we look forward to the Scottish Government proceeding with this legislation soon, as has been promised many times.”

Scottish Greens equalities spokesperson Maggie Chapman called it "a deeply disappointing intervention from a UK body supposedly about defending the rights of vulnerable people."

“Trans people who have already waited far too many years for these basic reforms will be dismayed by the prospect of further delay, which is why the Scottish Parliament must ensure we follow the nations who have already led on this," she added.

Policy analysts Hunter Blackburn Mackenzie, said they welcomed the "serious and substantial intervention".

"The Commission echoes concerns that have been put repeatedly to the Scottish Government by grass-root groups about the impact of reform on a range of policy areas, including data collection, legal protections for women, and criminal justice.

"We urge Ministers now to honour the SNP’s 2021 manifesto commitment to work with a range of stakeholders, and follow the Commission’s advice to undertake further detailed consideration before any change is made to the provisions in the existing Act, rather than press on with legislating for the self-declaration of sex."