- 25 May 2021
Date received: 23 Feb 2021
Date responded: 22 Apr 2021
All copies of information relating to a statement that "transgender women are to be treated as non-transgender women unless to do so would otherwise be prohibited by law” and a further statement that “transgender women are to be treated as non-transgender women unless to do so would otherwise be prohibited by law was not policy but rather a view held by Government”.
If you could provide copies of all information, including but not limited to correspondence, records of meetings, notes of telephone calls and emails held by the Scottish Government in respect of members of the Scottish Cabinet relating to :
• Which date this policy, intention, goal or view was adopted by the Scottish Cabinet.
• Records that support the decision to implement this policy, intention, goal or view including exchanges between Scottish Cabinet ministers, government departments and third parties, from the period 01/01/2014.
• All information and analysis that informed the adoption, or acceptance, by the Scottish Cabinet, of the policy, intention, goal or view from the period 01/01/2014.
• Records that communicate this policy, intention, goal or view to third parties, from Scottish Cabinet Ministers, from the period 01/01/2014.
I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for information regarding Scottish Government policies relating to trans women. In accordance with section 21(4) of FOISA, I have also reached a decision on your request. I can now provide our response to your original request.
Apologies for our delay in response, unfortunately this case took longer to complete than expected due to unforeseen circumstances.
I attach a copy of some of the information you requested, in the form of an extract briefing to Ministers which sets out some background on the Scottish Government’s policy relating to trans inclusion. While our aim is to provide information whenever possible, in this instance an exemption under section 17(1) (Information not held) applies.
In particular, there are no pieces of correspondence, records of meetings, notes of telephone calls, emails, or other information beyond the information attached, in relation to the adoption of this ‘policy, intention, goal or view’ in respect of the Scottish Cabinet. This is a formal notice under section 17(1) (Information not held) of FOISA that the Scottish Government does not have some of the information you have requested because it does not exist.
However, it is the view of the Scottish Government that trans women are women, and should be treated as such unless there is a legal requirement to treat them otherwise. The following information on the Scottish Government’s approach to trans inclusion, and the equality legislation that underpins it, may be helpful.
The Scottish Government is committed to advancing trans equality, in the context of our approach to progressing, protecting and promoting the rights of all LGBTI people in Scotland. Our support for trans rights does not conflict with our continued strong commitment to advance equality for women and to protect women’s rights.
The key piece of legislation that protects people against discrimination is the Equality Act 2010 (the 2010 Act). The 2010 Act is largely a reserved matter for the UK Parliament. The 2010 Act provides a strong legislative framework to combat discrimination in areas of life such as employment, education, access to goods and services, the exercise of public functions and membership of clubs and associations.
There are nine characteristics that are protected by the 2010 Act including sex and gender reassignment. In respect of sex, the 2010 Act says that ‘a reference to a person who has a particular protected characteristic is a reference to a man or to a woman,’ and ‘a reference to persons who share a protected characteristic is a reference to persons of the same sex.’ In respect of gender reassignment, the 2010 Act says that ‘a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.’
The Scottish Government continues to support the single sex exceptions in the Equality Act 2010, which can allow for trans people to be excluded from single-sex services, where this is a proportionate means of achieving a legitimate aim. Single sex exceptions under the Equality Act 2010 fall within the “equal opportunities” reservation in the Scotland Act 1998 and therefore are reserved to the UK Parliament.
When a person has a full Gender Recognition Certificate, section 9(1) of the Gender Recognition Act 2004 provides that “the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)” Gender Recognition Act 2004 (legislation.gov.uk). Section 9(3) of the 2004 Act provides that “Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.”
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.
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Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House