Gender Recognition Act reforms can't be rushed, EHRC tells MSPs

Regulator says impact of change 'must be understood'

The "impact of legislative change must be understood," the UK regulator, the Equality and Human Rights Commission (EHRC), has told MSPs over proposed reform of gender recognition laws.

Moves to simplify the rules around changing the legal sex for trans people are backed by the SNP, Greens, Labour and Lib Dems, yet remain one of the most controversial issues handled by the Scottish Parliament.

The Gender Recognition Reform (Scotland) Bill was put forwards in March with the aim of making it easier for trans people to change their legally recognised sex.

LGBTQI+ agencies say the current system is too costly, lengthy and invasive, but opponents, including some feminist groups, state that the shift to self-identification poses a risk to safety and women's rights.

This morning the parliament's cross-party Equality, Human Rights and Civil Justice Committee began a new phase of evidence sessions as consultations continue.

Representatives of Stonewall Scotland, which favours the change, said the debate around the issue has been "horrible", while and the EHRC, which has called for caution, called it "toxic".

Labour MSP Pam Duncan-Glancy said that the panel had heard evidence of the frustrations felt by trans people for the length of time it has taken to consider the proposed reform of the Gender Recognition Act (GRA), which have already been subject to prior consultation.

She said MSPs had been told that "the length of time has gone on has not helped the discourse that has been described".

Melanie Field, EHRC chief strategy and policy officer, responded: "As a regulator of the law, our sort of guiding principle is that the impact of legislative change should be understood.

"It's about really understanding and being able to mitigate potential impacts and address concerns constructively before pushing ahead with changing the law."

Field said there are "some parallels" in the deeply held views on same-sex marriage, stating that it was "really important" that "concerns were able to be expressed and addressed and the legislation was constructed in such a way that appropriate safeguards were build into it". She went on: "The result was that equal marriage is now accepted and uncontroversial, and that's what I would like to happen here."

While the proposals are aimed at trans men and trans women, they do not make provision for individuals who identify as non-binary to amend their legal documents. The Scottish Government has established a working group on the matter and Vic Valentine of the Scottish Trans Alliance said "the lack of legal recognition for non-binary people" is the aspect of the bill that "the whole of the trans community, including trans men and trans women, are most disappointed about".

Valentine and LGBT Youth Scotland chief executive Dr Mhairi Crawford both stated that 16-and-17-year-olds may need additional help to understand what applying for a GRC means, but that this need is not limited to teenagers. 

And Crawford raised concerns that provisions in the bill allowing gender recognition certificates (GRC) to be challenged through the courts by third parties could lead to young people facing "vexatious" cases brought by non-supportive family members.

On the concerns raised by women's groups, Stonewall Scotland director Colin Macfarlane said "the GRA has no impact on the Equality Act" which protects sex-based rights and also outlaws discrimination based on gender reassignment, sexuality, disability and other characteristics. 

He told MSPs: "The changes within the GRA are not changing anything in the Equality Act. The Equality Act is not up for review. So those things that you've mentioned around single sex spaces and the exemptions continue and exist and will continue to exist."

Macfarlane continued: "It's unfortunate, really deeply unfortunate, I think, that there has been misinformation, some of it deliberate, around what the provisions of this bill will mean for the impact of women and girls.

"When you look at the jurisdictions around the world that are introducing the system, as far as we are aware, there have been no negative impacts of introducing the system and the elimination of rights of women and girls. 

"The evidence would suggest that the introduction of this bill will not have negative impacts on those areas."

Crawford added: "The bill is about gender, a piece of paper. It's about the birth certificate. It is not about the Equality Act."

However, Field said "more detailed consideration is needed before legislative changes made" due to "the continued lack of certainty about the practical consequences for individuals and society of extending the ability to change legal sex from a defined group with a recognised medical condition". 

She said: "Questions continue to be raised in different quarters about potential consequences; for example, in relation 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. We fully recognize that these issues are complex, sensitive and divide opinion, but the current polarised debate is causing much harm and distress to people on all sides. 

"It's our view that these questions should be engaged with and discussed and addressed carefully, openly and with respect before legislative changes made ensuring that the practical impact of proposals is understood and concerns are addressed is vital if legislative changes are to be effective in improving the lives of trans people, and further damage and division is to be avoided."

Evidence sessions continue.