Information about the NHS Scotland Workforce: Gender Transitioning Guide: FOI release

Information requested

1. Please state when work on developing the draft (Gender Transitioning) Guide began (month/year).

2. Please state when the draft Guide was first distributed to Health Boards for consultation (month/year).

3. Please state which organisations have been consulted on the draft Guide, or asked to comment in any way. This should include any bodies/organisation approached to provide legal advice (for example, EHRC, HSE, Scottish Government legal services).

4. Please provide copies of all feedback/comments received on the draft Guide.

5. Please confirm the anticipated start date for the policy.

Response

For question 1, the development of the Gender Transitioning guide began in January 2024.

For question 2, the draft Gender Transitioning guide was not distributed to Health Boards for consultation. Usual practice is for supporting documents to be developed after the consultation period. The Equality, Diversity and Inclusion policy, which was distributed to Health Boards for consultation from February 2024 to March 2024, indicated that a guide on transitioning will be developed to support employees who are transitioning. From this, any comments or feedback on transitioning was used to shape the Gender Transitioning guide.

For question 3, the draft Gender Transitioning guide was drafted by the ‘Once for Scotland’ NHSScotland Workforce Policy Programme Policy Development Group, which has tri-partite representation of Scottish Government officials, Trade Union representation and NHS Employers. The development process also involved subject matter experts from both the Scottish Government and NHSScotland. This process is usual practice for all policies and guides developed under the ‘Once for Scotland’ NHSScotland Workforce Policies Programme. The Ministerial Code requires Ministers not to reveal the source of any legal advice save in exceptional circumstances, which do not apply in this instance.

For question 4, while our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because an exemption under section 29(1)(a) (policy formulation) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex to this letter.

For question 5, while our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. The reasons why we do not have the information are explained in the Annex to this letter.

ANNEX

REASONS FOR NOT PROVIDING INFORMATION

An exemption under section 17(a) applies to the information under question 5 in which you have requested. While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. Our initial timeline to publish this guidance alongside the other policies and supporting documents within Phase 2.2 of the ‘Once for Scotland’ NHSScotland Workforce Policies Programme has been delayed. Once we have confirmation, we will share the publication date with key stakeholders.

An exemption applies, subject to the public interest test

An exemption under section 29(1)(a), which covers formulation of policy, applied to the information under question 4 which you have requested. This exemption applies as the requested information pertains to the formulation or development of government policy. The content within the specified portion of your request may be utilised by Scottish Ministers in shaping and determining future policy initiatives. We appreciate your understanding of the sensitivity surrounding this matter and the importance of maintaining the confidentiality of policy formulation processes.

This exemption is subject to the 'public interest test'. Taking account of all the circumstances of this case, we considered if the public interest in disclosing the information outweighed the public interest in applying the exemption. We found that, on balance, the public interest lay in favour of upholding the exemption. We recognise there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However in this case there was a greater public interest in allowing a private space in which officials could shape and develop future policy initiatives. This privacy is essential to enable effective, diverse discussion so that policies which positively impact the Scottish public can be successfully developed. Premature disclosure is likely to undermine this process, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.