Publication - Consultation paper

Gender Recognition Reform (Scotland) Bill: consultation

Published: 17 Dec 2019
Directorate:
Justice Directorate
Part of:
Law and order
ISBN:
9781839604331

The draft Bill reforms the process by which trans people gain legal recognition of their lived gender through a gender recognition certificate.

195 page PDF

1.9 MB

195 page PDF

1.9 MB

Contents
Gender Recognition Reform (Scotland) Bill: consultation
Annex J: Draft Equality Impact Assessment Record

195 page PDF

1.9 MB

Annex J: Draft Equality Impact Assessment Record

Title of policy/ practice/ strategy/ legislation etc. The review of the Gender Recognition Act 2004 (the GRA)
Minister Cabinet Secretary for Social Security and Older People
Directorate: Division: Team Civil Law and Legal System
Is this new policy or revision to an existing policy? New policy, although it is already possible under the GRA to obtain legal gender recognition

Purpose of this draft Equality Impact Assessment (EQIA)

1. In line with legal duties when proposing major policy changes, including Bills, the Scottish Government has prepared this draft EQIA. The aim of EQIAs is to consider the impact of policy proposals on persons having the protected characteristics in the Equality Act 2010 (“the 2010 Act”) and to ensure that any impact is taken account of when putting forward the final proposals.

2. This EQIA is a draft. It has been prepared in-house by the Scottish Government. The consultation asks consultees for views on the draft Impact Assessments, including this draft EQIA.

3. When the Gender Recognition Reform (Scotland) Bill is introduced into Parliament, the Scottish Government will publish final versions of the Impact Assessments at the same time, including a final version of the EQIA.

4. Reform of the GRA would contribute to the Scottish Government’s National Outcome of: “We respect, protect and fulfil human rights and live free from discrimination.”[167]

The last consultation

5. The Scottish Government carried out a consultation from 9 November 2017 to 1 March 2018 on proposals for reforming the GRA.[168] Chapter 7 of the independent analysis of responses[169] recorded comments made by consultees on the draft Impact Assessments included with the last consultation. The Scottish Government has taken account of these comments when preparing this partial EQIA.

6. There are a number of policy changes since the last consultation. In particular:

  • The Scottish Government has decided not to extend legal gender recognition to those under 16. In taking this decision, the Scottish Government has taken account of the mixed evidence in the Child Rights and Wellbeing Impact Assessment (CRWIA) on the effect of obtaining legal gender recognition of those under 16. The Scottish Government does consider that those uncertain of their gender identity should be supported. The consultation also seeks views on whether the minimum age for applying for legal gender recognition should be reduced from 18 to 16.
  • The Scottish Government has decided not to extend legal gender recognition at this stage to non-binary people. The Scottish Government considers that legal recognition of non-binary people would raise a number of issues in relation to areas such as registration, data, rights and responsibilities, changes to legislation, service delivery and costs. The Scottish Government is setting up a working group on non-binary people.

7. Responses to the last consultation, including comments on the draft EQIA, referred to potential consequences for women as a consequence of the reform of the GRA. Chapter 5 of the consultation discusses the potential consequences for women and the section of this draft EQIA which considers the protected characteristic of “sex” also discusses the potential consequences for women of GRA reform. In particular, reference is made to various exceptions in the Equality Act 2010 (“the 2010 Act”) which allow trans people to be excluded in specified circumstances where this is proportionate and is to achieve a legitimate aim.

Meetings with groups/organisations

8. Subsequent to the 2018 consultation, the Cabinet Secretary for Social Security and Older People has met with a range of groups to gather further information and evidence:[170]

  • Women’s Spaces in Scotland;[171]
  • CARE for Scotland;[172]
  • The Free Church of Scotland;[173]
  • Equality Network;[174]
  • Stonewall Scotland;[175]
  • LGBT Health and Wellbeing;[176]
  • LGBT Youth Scotland;[177]
  • Scottish Women’s Aid;[178]
  • Rape Crisis Scotland;
  • Engender;[179]
  • Close the Gap;
  • Zero Tolerance;
  • The Chair of the First Minister’s National Advisory Group on Women and Girls; and
  • Members of the Scottish Youth Parliament.

9. In addition, Scottish Government officials met with:

  • A member of forwomen.scot;
  • The Scottish Catholic Education Service; and
  • The Catholic Parliamentary Office of the Bishops' Conference of Scotland.[180]

Stage 1: Framing

Results of framing exercise

In line with usual practice, Scottish Government officials held an internal framing meeting. This is designed to ensure that officials in addition to those leading in a policy area consider at an early stage points which then need to be considered in more detail in the EQIA.

The exercise identified that the following protected characteristics were particularly significant for this EQIA:

  • Disability (including reduced capacity);
  • Age (not just young people but older people);
  • Gender reassignment;
  • Sex;
  • Religion/belief.

Stage 2: Data and evidence gathering, involvement and consultation

There is limited evidence about the numbers of trans people in Scotland and their experiences.

Characteristic Evidence gathered and

Strength/quality of evidence

Source Data gaps identified and action taken
Age 1. The draft Child Rights and Wellbeing Impact Assessment sets out the evidence gathered in relation to people under 18.

2. A report about the mental health and wellbeing of trans people reported that of the 889 people surveyed, the average age at which participants began living part-time in their felt gender was 23 (based on 487 who answered the question). The average age at which they began living full-time as their felt gender was 31 (based on 545 people answering the question).[181]

3. In the UK in 2007/2008, 392 people were issued with full GRCs. 67 (17%) were aged 58 and over.[182] In 2018/2019, 323 people were issued with full GRCs and the number of successful applicants aged 58 and over was 13%.

4. A small-scale qualitative study (life-story interviews) with 6 older trans people in Sweden (aged 62-78) highlighted some additional age-related difficulties that older trans people might experience with transitioning.

Participants reported encountering attitudes questioning the value of transitioning later in life, that physical aging can make the performance of gender harder in some ways and fears about the amount of choice and control they may have over future care.

2. Trans Mental Health and Emotional Wellbeing Study 2012, Jay McNeil, Louis Bailey, Sonja Ellis, James Morton & Maeve Regan.

3. Tribunals and Gender Recognition Statistics (Ministry of Justice)

4. A. Siverskog, 2015. Ageing Bodies that Matter: Age, Gender and Embodiment in Older Transgender People's Life Stories. NORA: Nordic Journal of Women's Studies, 23(1): 4-19.

Disability 1. In a survey of 889 trans people in 2011, 58% (of the sample) indicated that they had a disability or chronic health condition.[183]

2. In the UK Government LGBT Survey carried out in 2017, 33% of trans participants indicated that they had a disability, whereas 14% of non-trans respondents said they did.[184]

3. In the survey mentioned at 1 above, 36% identified that they had a mental health issue. 88% (of 549 who answered the question) had been diagnosed with depression or considered they were or had been depressed and 48% (of 483) had attempted suicide at least once.

4. Evidence indicates that the mental health issues experienced by trans people are related to the prejudice and discrimination they experience.[185]

5. Evidence indicates that transitioning to the gender with which the person identifies helps resolve distress and mental health issues.[186]

6. The Gender Identity Development Service (GIDS), commissioned by NHS England, has some information on its

evidence base of a higher prevalence of autistic spectrum conditions in clinically referred gender dysphoric (GD) adolescents than in the general adolescent population.[187] This clinical observation is also reiterated in the wider international literature.

7. A 2016 literature review concluded that ‘Although the research is limited, especially for adults, there is an increasing amount of evidence that suggests a co-occurrence between gender dysphoria and ASD [Autism Spectrum Disorder]’ and that there is ‘a high prevalence of ASD in people with gender dysphoria attending clinical services’.[188]

A subsequently published study found that ‘autistic traits appear to be more prevalent in transgender people assigned female at birth, but not in those assigned male at birth’.[189]

The study compared the prevalence of autistic traits as measured by a self-report instrument between a sample of adults referred to a UK transgender healthcare service between 2012 and 2016, with a non-trans sample matched for age and sex.

No significant difference in autistic spectrum quotient (AQ) scores was found overall between the non-trans and trans groups, nor between groups for those assigned male at birth (non-trans men and trans women).

However, trans men were significantly more likely than non-trans women to have a higher AQ score.

The research found that the difference between groups mainly related to social behaviours, with less indication among the trans participants of difficulties around imagination or fascination with patterns and numbers, and the authors therefore hypothesise that this may indicate that ‘some transgender people do not really present with ASC [Autistic Spectrum Conditions] but the high levels of social difficulties due to anxiety, depression and years of victimisation may affect the way they interact with others’.

Studies to date have focused on prevalence rates and primarily with those who have been referred to a gender identity clinic. We are not aware of any studies discussing the influence of ASD diagnoses on treatment outcomes for gender dysphoria.[190]

1 and 3. Trans Mental Health and Emotional Wellbeing Study 2012, Jay McNeil, Louis Bailey, Sonja Ellis, James Morton & Maeve Regan.

2. UK Government LGBT Survey Research Report July 2018

4. The Lancet Psychiatry 26 July 2016

5. Dhejne C, et al “Mental Health and gender dysphoria: A review of the literature” (2016) International Review of Psychiatry 28(1)

6. Information collated by the Gender Identity Development Service England.

Glidden, D., Bouman, W., Jones, B. & Arcelus, J., 2016. Gender dysphoria and autism spectrum disorder: A systematic review of the literature. Sexual Medicine Reviews, 4(1), 3-14.

7. Nobili, A., Glazebrook, C., Bouman, W., Glidden, D., Baron-Cohen, S., Allison, C., Smith, P. & Arcelus, J., 2018. Autistic Traits in Treatment-Seeking Transgender Adults. Journal of Autism and Developmental Disorders, 48: 3984-3994

The Scottish Government has considered how notaries public and justices of the peace can check whether a person making a statutory declaration knows and understands what they are doing.

The consultation outlines guidance available to notaries public and justices of the peace on this type of issue.

Gender Reassignment 1. It appears from information held by NRS that around 30 people a year from Scotland obtain full GRCs.

2. The average number of full GRCs issued annually across the UK since the 2004 Act was implemented is 384.[191] Up to the end of 2018/19, the Gender Recognition Panel had issued 5,233 full GRCs.

3. One estimate of the number of trans people in Scotland is around 25,000. This is based on 0.5% of the population of Scotland. The Scottish Public Health Network Report on the Health Care Needs Assessment of Gender Identity Services suggests that 0.5% is the most often quoted likely prevalence of trans people.[192]

4. Of the 1,160 self-selected trans people from Scotland who responded to the UK National LGBT Survey in 2017, 3.7% said that they owned a GRC.[193] However this proportion also includes non-binary respondents who may be less likely to apply for a GRC. The methodology used means respondents are drawn from non-representative sample of LGBT people across the UK, and therefore it is not possible to generalise these findings to the Scottish trans population as a whole.

5. The UK LGBT Survey also asked trans people who had not applied for a GRC why they had not done so. The most common reasons that trans women in Scotland gave for having not applied for a GRC were the process being too bureaucratic (48%), not meeting the requirements (35%) and the cost of the application (33%). 10% said that they didn’t have the time, 11% said that they didn’t want to share their medical information, and 5% said that it was difficult to access their medical records.

For trans men, not meeting the requirements was the most common reason for not applying for a GRC (51%), followed by the application cost (37%) and the process being too bureaucratic (33%). 12% said that they didn’t have the time, 7% said that they didn’t want to share their medical information, and 6% said that it was difficult to access their medical records.

The differences between men and women may partly be explained by the different age profiles of the respondents, with trans men respondents being younger and fewer having completed transitioning.

6. A qualitative study which conducted in-depth interviews with 28 trans individuals living in Scotland in 2012-2014 found that the complex bureaucratic nature of the current GRC application process meant that most of the research participants ‘who intended to permanently transition, whether through medical procedures or not, chose to rather change their name officially by deed poll or statutory declaration, legally allowed for anyone in the UK.’

7 In Ireland, 3 people out of the 517[194] who have obtained a GRC asked for it to be revoked (because they no longer wished to be recognised in an acquired gender). This is 0.6%.

8. In a survey of 889 trans people in 2011, in discussing the physical changes which they had undergone in relation to being trans or transitioning, 86% had no regrets, with 10% having minor regrets and 2% having major regrets. In terms of social changes that they had made in relation to being trans or transitioning, 53% (of 523) had no regrets. 34% had minimal regrets, and 9% had significant regrets.[195]

9. A Swedish study published in 2014 examined the outcomes of applications in Sweden for legal and surgical sex reassignment[196] between 1960 and 2010. This indicated that out of the 681 people who changed their sex legally and surgically, 2.2% of them later regretted this and sought to reverse their decision. The study reported a significant decline in regrets over the time period.

10. A web-based survey conducted in Sweden in 2014 using an anonymous, self-selected sample of 796 trans individuals aged 15-94 found a correlation between trans people not having gender recognition and poorer reported quality of life.

Both wanting to change legal gender and having changed legal gender were also correlated with poor self-rated health, although the association was smaller among those who had changed legal gender. The authors conclude that: ‘These results suggest that … increased access to legal gender recognition could improve the overall health and quality of life of trans people in Sweden.’

11. There is some evidence regarding numbers of applicants for legal gender recognition from countries which have adopted self-declaration systems. In Denmark (pop. 5.8 million),[197] on average 289 people per year obtained legal gender recognition. In Norway (pop. 5.3 million),[198] where a self-declaration system for legal gender recognition was adopted in 2016, 706 people obtained legal gender recognition in the subsequent nine month period.

1. National Records of Scotland

2. Tribunals and Gender Recognition Statistics (Ministry of Justice)

3. The Scottish Public Health Network Report on the Health Care Needs Assessment of Gender Identity Services

4. Government Equalities Office, National LGBT Survey (2017)

5. Government Equalities Office, National LGBT Survey (2017)

6 S. Morgan, 2017. Constructing Identities, Reclaiming Subjectivities,

Reconstructing Selves: An Interpretative Study of Transgender Practices in

Scotland. PhD thesis, University of Glasgow.

7 Information provided by the Government of Ireland.

8. Trans Mental Health and Emotional Wellbeing Study 2012, Jay McNeil, Louis Bailey, Sonja Ellis, James Morton & Maeve Regan

9. Dhejne, Cecilia et al (2014). “An Analysis of All Applications for Sex Reassignment Surgery in Sweden, 1960-2010: Prevalence, Incidence, and Regrets”, Archives of sexual behavior. 43

10. Zeluf G. et al., 2016. Health, disability and quality of life among trans people in Sweden: A web-based survey. BMC Public Health, 16(1): 1-15.

11. Source is Danish Ministry of Social Security and the Interior, and Norwegian Ministry of Health and Care.

Countries which have adopted systems for legal gender recognition based on an applicant’s declaration have done so from 2012 onwards.

The Scottish Government is not aware of evidence that obtaining legal gender recognition overseas through such a process leads to adverse consequences generally for society.

However, the Scottish Government will continue to monitor this before introducing a Bill into the Scottish Parliament to establish a statutory declaration based system for obtaining legal gender recognition.

The Scottish Government considers the key question is whether moving to a statutory declaration based system for obtaining legal gender recognition produces benefits for Scotland, when compared with the current system in Scotland for obtaining legal gender recognition.

Marriage and Civil Partnership

(the Scottish Government does not require assessment against this protected characteristic unless the policy or practice relates to work, for example HR policies and practices)

1. In 2018/19, the GRP granted 34 full GRCs to married applicants across the UK.[199]

2. Between 2010/11 and 2017/18, there were nine divorces in Scotland and two dissolutions of civil partnerships on the ground that an interim GRC had been issued to one of the parties to the marriage.

1. Tribunals and Gender Recognition Statistics (Ministry of Justice).

2. Scottish Government Civil Justice Statistics.

Pregnancy and Maternity - - -
Race 1. Of the 1,160 self-selected trans people from Scotland who responded to the UK LGBT Survey in 2017, 93.8% said that they were White.[200] 1.1% preferred not to say, and the remaining 5.1% identified as belonging to a minority ethnicity.

The methodology used means respondents are drawn from non-representative sample of LGBT people across the UK, and therefore it is not possible to generalise these findings to the Scottish trans population as a whole.

In particular, respondents were typically younger than the general population and may not have been sampled proportionately across local authorities. Within the Scottish general population younger age groups are more ethnically diverse, and the proportion of minority ethnic people differs between local authorities.

2. There is no statistical evidence published about the ethnic origin of people who are issued with a full GRC under the GRA.

1. Government Equalities Office, National LGBT Survey (2017)
Religion Or Belief 1. Of the 1,160 self-selected trans people from Scotland who responded to the UK National LGBT Survey in 2017, two thirds (70%) said that they had no religion or belief.[201] 11% identified as Christian. 9% preferred not to say.

The methodology used means respondents are drawn from non-representative sample of LGBT people across the UK, and therefore it is not possible to generalise these findings to the Scottish trans population as a whole.

In particular, respondents were typically younger than the general population and may not have been sampled proportionately across local authorities. Within the Scottish general population a higher proportion within younger age groups belong to no religion, and the

proportion of the population belonging to different religions varies between local authorities.

2. A number of respondents to the previous consultation noted that the proposed changes to the system for obtaining legal gender recognition could impact on women whose religion or belief prevented them from sharing spaces with men. Use of public toilets, changing rooms and refuges and participation in sport were given as examples.[202]

On this point, and as outlined in more detail in Chapter 5 of the consultation and later on in this EQIA, there are a number of exceptions in the Equality Act 2010 which allow trans people to be excluded in specified circumstances when this is proportionate and to achieve a legitimate aim.

3. Some respondents to the previous consultation noted that gender reassignment may be contrary to religious beliefs held by some.

The Scottish Government appreciates that some religious bodies may be opposed to the concept of legal gender recognition.

However, as outlined in the consultation, the Scottish Government considers that a gender recognition system is required in Scotland for both policy reasons and to comply with the European Convention on Human Rights.

Other religious or belief bodies may, of course, support the concept of legal gender recognition.

As outlined in Chapter 5 of the consultation, and later on in this EQIA, there are exceptions in the Equality Act 2010 which allow trans people to be excluded from certain forms of religious employment and also allow an approved celebrant to refuse to solemnise the marriage, or register the civil partnership, of a person that the celebrant reasonably believes acquired their gender under the GRA.

1. Government Equalities Office, National LGBT Survey (2017)

2 Consultation responses.

Sex 1. A higher proportion of people legally recognised in the UK in their acquired gender under the 2004 Act are trans women (male to female) than trans men.

2. However, the proportion of trans men (female to male) being legally recognised under the GRA has increased over time.

3. In 2005/06, 1,181 full GRCs were granted (there was pent up demand for legal gender recognition in the early period after the GRP was established). 912 (77%) of these were to trans women and 269 (23%) to trans men.

4. In 2008/09, 241 full GRCs were granted. 191 (79%) were to trans women and 50 (21%) to trans men.

5. In 2018/19, 323 full GRCs were granted. 198 (61%) were to trans women and 125 (39%) to trans men.[203]

6. The position in the UK similarly reflects the apparent position in other countries that there are more trans women than trans men.[204]

7. In Ireland, of the 517 people who have been recognised between September 2015 and August 2019, 233 (41%) were trans men (recorded as female at birth).

8. A number of respondents to the previous consultation raised concerns about the implications of legal gender recognition for women.

Concerns included:

  • access to women’s safe spaces;
  • risk of abuse;
  • a perceived erosion of the rights of women;
  • women’s sports,
  • intimate medical care;
  • the accuracy of statistical information in areas such as crime recording or equality monitoring;
  • freedom of speech.[205]

On these points, Chapter 5 of the consultation, and this EQIA (later on) outline exceptions in the Equality Act 2010 which can be used in specified circumstances, when it is proportionate and to achieve a legitimate aim, to exclude trans people from single sex services and to exclude trans women from sporting competitions for women. There are also exceptions which can be used in relation to occupational requirements.

These exceptions will remain in place after reform of the Gender Recognition Act 2004.

On data, the Scottish Government has established a working group on sex and gender in data.[206]

On freedom of speech, the Scottish Government is fully committed to this and there are provisions in the European Convention on Human Rights to protect freedom of speech.

9. There is a lack of any evidence around the actual experienced impacts of trans inclusion in services.

Much of the literature identified does not justify a blanket exclusion of trans women from services or spaces (they themselves are a vulnerable group), but rather highlights the need for individual assessments and tailoring the service for each individual’s needs, where they are also likely to encompass a wide variety of things unrelated to an individual’s sex or gender identity.

10. The Scottish Government has not identified any evidence supporting the claim that trans women are more likely than non-trans women to sexually assault other women in women-only spaces. Much of the literature reiterates this lack of any evidence, legal, medical or otherwise, to support this characterisation of trans women as ‘deviant’ or predatory.[207]

In addition to concerns about the inclusion of trans women in women-only spaces and services, some respondents expressed concerns that predatory men posing as trans women would seek to gain access to

women only spaces and services for malicious reasons.

11. The Scottish Government has not identified any evidence supporting a link between women-only spaces being inclusive of transgender women, and non-trans men falsely claiming a trans identity to access these spaces and commit sexual violence. Other sources identified reiterated that there is a lack of any evidence to support this claim.

1 to 5 Tribunals and Gender Recognition Statistics (Ministry of Justice).

7. Information provided by the Government of Ireland.

8. Consultation responses.

9. Gottschalk, L., 2009. Transgendering women's space: A feminist analysis of perspectives from Australian women's services. Women's Studies International Forum, 32(3): 167-178.

10. Dunne, P., 2017. (Trans)forming single gender services and communal accommodations. Social and Legal Studies, 26(5).

Eckes, S., 2017. The restroom and locker room wars: Where to pee or not to pee. Journal of LGBT Youth, 14(3): 247-265.

11. Dunne 2017 and Eckes 2017

Sexual Orientation 1. Of the 1,160 self-selected trans people from Scotland who responded to the UK LGBT Survey in 2017, around a third (32.1%) identified as bisexual.[208] A fifth (22%) said that they were gay or lesbian, 13.6% identified as pansexual, and 4.9% as queer. 10.4% said that they were heterosexual. 5.5% said that they did not know, or preferred not to say. The methodology used means respondents are drawn from non-representative sample of LGBT people across the UK, and therefore it is not possible to generalise these findings to the Scottish trans population as a whole.

2. Of the 530 self-selected respondents to the 2012 Scottish Transgender Alliance survey who answered the question about sexual orientation, around a quarter identified as bisexual (27%) and another quarter identified as queer (24%). A fifth (20%) identified as straight or heterosexual.[209] Again, this was not a random sample and so findings cannot be assumed to be representative of the trans population as a whole.

3. Respondents to the first consultation made a number of comments in this area, including suggestions that:

  • gender non-conforming children are being encouraged to transition when they would otherwise grow up to be lesbian or gay;
  • gay and lesbian people are coming under increasing social pressure to change their gender rather than to live as gay or lesbian;
  • lesbians may be accused of transphobia if they refuse to enter sexual relationships with trans women;
  • when lesbian organisations or advocacy groups are joined by trans women, trans issues often take priority.[210]

On children, the Scottish Government has concluded that legal gender recognition should not be available to those under 16.

On lesbian and gay people, the Scottish Government considers that people should be able to live as lesbian and gay. This Government promoted the Marriage and Civil Partnership (Scotland) Act 2014 through Parliament. A key reason for promoting that legislation was to make it clear that same sex relationships have the same standing in society as mixed sex relationships.

On relationships, Government does not lay down who a person should enter into a relationship with. That is a personal matter for the individuals concerned.

On organisations, the rules in the Equality Act 2010 on membership and access to a benefit, facility or service, do not apply to associations with under 25 members.[211] In addition, there is an exception which allows an association to restrict its membership to persons who share a single protected characteristic.[212]

1. Government Equalities Office, National LGBT Survey (2017)

2. Scottish Transgender Alliance, Trans Mental Health Study 2012.

3. Consultation responses.

Stage 3: Assessing the impacts and identifying opportunities to promote equality

Having considered the data and evidence you have gathered, this section requires you to consider the potential impacts – negative and positive – that your policy might have on each of the protected characteristics. It is important to remember the duty is also a positive one – that we must explore whether the policy offers the opportunity to promote equality and/or foster good relations.

Do you think that the policy impacts on people because of their age?

Age Positive Negative None Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation Policy is not designed for this.
Advancing equality of opportunity Older people particularly those who are longer term transitioned may be able to apply without having to gather documentary evidence of their transition that they may no longer have to hand.

People aged 16 and 17 would be able to apply.

Promoting good relations among and between different age groups Policy is not designed for this.

Do you think that the policy impacts on disabled people?

Disability Positive Negative None Reasons for your decision
Eliminating unlawful discrimination, harassment and victimisation Policy is not designed for this.
Advancing equality of opportunity Living openly in an acquired gender with documents which are consistent may improve a transgender person’s mental health. The Scottish Government and the Registrar General will consider further the need for clear and straightforward guidance for people with learning disabilities in relation to any new system for obtaining legal gender recognition.
Promoting good relations among and between disabled and non-disabled people Policy is not designed for this.

Do you think the policy impacts on people because of their marriage or civil partnership?

Marriage and Civil Partnership[213] Positive Negative None Reasons for your decision
Eliminating unlawful discrimination Policy is not designed for this.

Do you think that the policy impacts on women because of pregnancy and maternity?

Pregnancy and

Maternity

Positive Negative None Reasons for your decision
Eliminating unlawful discrimination Policy is not designed for this.
Advancing equality of opportunity Policy is not designed for this.
Promoting good relations Policy is not designed for this.

Do you think the policy impacts on people on the grounds of their race?

Race Positive Negative None Reasons for your decision
Eliminating unlawful discrimination Policy is not designed for this.
Advancing equality of opportunity Policy is not designed for this.
Promoting good race relations Policy is not designed for this.

Do you think the policy impacts on people because of their religion or belief?

Religion or belief Positive Negative None Reasons for your decision
Eliminating unlawful discrimination Policy is not designed for this.
Advancing equality of opportunity Policy is not designed for this.
Promoting good relations Some religious bodies may have concerns on societal or doctrinal grounds to introducing a new system for obtaining legal gender recognition.

The Scottish Government appreciates that some religious bodies may be opposed to the concept of legal gender recognition. There are protections in the Equality Act 2010 outlined below for the interests of religious bodies.

However, as outlined in the consultation, the Scottish Government considers that a gender recognition system is required in Scotland for both policy reasons and to comply with the European Convention on Human Rights.

Other religious or belief bodies may, of course, support the concept of legal gender recognition.

There are exceptions in the Equality Act 2010 which relate to occupational requirements and religious requirements.

Paragraph 2 of schedule 9 of the 2010 Act relates to religious requirements, and covers a range of employment and office holders in organised religion, such as ministers of religion and some lay posts that promote and represent religion. If the criteria are met, it is possible to refuse to employ a trans person in these posts.

Paragraph 3 of schedule 9 relates to other requirements relating to religion or belief, where, if the criteria are met, it is possible to refuse to employ a trans person for the work.

Given the provisions of the 2010 Act, we have ticked the “none” box.

Sex. Do you think that the policy impacts on men and women in different ways?

Sex Positive Negative None Reasons for your decision
Eliminating unlawful discrimination Policy is not designed for this.
Advancing equality of opportunity A number of respondents to the previous consultation raised concerns about the implications of legal gender recognition for women.

Concerns included:

  • access to women’s safe spaces;
  • risk of abuse;
  • women’s sports;
  • intimate medical care;
  • the accuracy of statistical information in areas such as crime recording or equality monitoring;
  • freedom of speech.

The Scottish Government is of the view that there is lack of evidence that including trans women in women-only services and spaces has negative impacts.

The 2010 Act has a number of specified exceptions to the general provisions on non-discrimination. Some of these exceptions are directly relevant when considering the position of women in relation to gender recognition. Organisations and service providers can, when appropriate, make use of the exceptions in the 2010 Act to exclude trans people. However, the exceptions have to be used in a proportionate way, and to achieve a legitimate aim.

On sport, section 195 of the 2010 Act contains provision allowing, in certain specified circumstances, restrictions on trans people participating in sport to be imposed if necessary to uphold fair competition or the safety of competitors.

On single sex services, the 2010 Act allows women-only services and allows services to exclude trans women in certain specified circumstances when it is proportionate and in pursuit of a legitimate aim. Paragraph 28 of schedule 3 the 2010 Act sets out the exception which relates to trans persons, and provides:

(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

(a) the provision of separate services for persons of each sex;

(b) the provision of separate services differently for persons of each sex;

(c) the provision of a service only to persons of one sex.

This provision would, for example, allow the operator of a domestic abuse refuge designed for women only to exclude a trans woman from the service if the operator judges that this is a proportionate means of achieving a legitimate aim. This is likely to involve carrying out a risk assessment to balance the needs of all parties: the trans person; other users of the service and staff.

On data, the Scottish Government has established a working group on sex and gender in data.[214]

On freedom of speech, the Scottish Government is fully committed to this and there are provisions in the European Convention on Human Rights to protect freedom of speech.

Given the various provisions in this area, we have ticked the “none” box.

Promoting good relations between men and women Policy is not designed for this.

Do you think that the policy impacts on people because of their sexual orientation?

Sexual orientation Positive Negative None Reasons for your decision
Eliminating unlawful discrimination Policy is not designed for this.
Advancing equality of opportunity Respondents to the first consultation made a number of comments in this area, including suggestions that:
  • gender non-conforming children are being encouraged to transition when they would otherwise grow up to be lesbian or gay;
  • gay and lesbian people are coming under increasing social pressure to change their gender rather than to live as gay or lesbian;
  • lesbians may be accused of transphobia if they refuse to enter sexual relationships with trans women;
  • when lesbian organisations or advocacy groups are joined by trans women, trans issues often take priority.[215]

On children, the Scottish Government has concluded that legal gender recognition should not be available to those under 16.

On lesbian and gay people, the Scottish Government considers that people should be able to live as lesbian and gay. This Government promoted the Marriage and Civil Partnership (Scotland) Act 2014 through Parliament. A key reason for promoting that legislation was to make it clear that same sex relationships have the same standing in society as mixed sex relationships.

On relationships, Government does not lay down who a person should enter into a relationship with. That is a personal matter for the couple.

On organisations, the rules in the Equality Act 2010 on membership and access to a benefit, facility or

service, do not apply to associations with under 25 members.[216] In addition, there is an exception which allows an association to restrict its membership to persons who share a single protected characteristic.[217]

Promoting good relations Policy is not designed for this.

Do you think your policy impacts on trans people?

Gender reassignment Positive Negative None Reasons for your decision
Eliminating unlawful discrimination There are benefits for transgender people through having a revised system for gender recognition but this is best recognised in the next category of “advancing equality of opportunity”.
Advancing equality of opportunity Introducing a revised system for obtaining legal gender recognition will enable trans people to obtain legal rights without having to go through an overly intrusive system established by the current GRA.
Promoting good relations Policy is not designed for this.

Stage 4: Decision making and monitoring

Identifying and establishing any required mitigating action

Have positive or negative impacts been identified for any of the equality groups? There are positive impacts for the protected characteristics of age, disabled people and transgender people.
Is the policy directly or indirectly discriminatory under the Equality Act 2010? No
If the policy is indirectly discriminatory, how is it justified under the relevant legislation? -
If not justified, what mitigating action will be undertaken? -

Describing how Equality Impact analysis has shaped the policy making process

The previous consultation sought views on the EQIA prepared then. A number of consultees offered comments, in particular in relation to the protected characteristic of “sex”. As outlined in the consultation and in this draft EQIA, there are a number of existing measures (e.g. exceptions in the Equality Act 2010) which can address the concerns raised.

Monitoring and Review

National Records of Scotland will publish statistics on the number of applications received under the new system.

Stage 5 - Authorisation of EQIA

Please confirm that:

  • This Equality Impact Assessment has informed the development of this policy:

Yes

  • Opportunities to promote equality in respect of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation have been considered, i.e.:
    • Eliminating unlawful discrimination, harassment, victimisation;
    • Removing or minimising any barriers and/or disadvantages;
    • Taking steps which assist with promoting equality and meeting people’s different needs;
    • Encouraging participation (e.g. in public life);
    • Fostering good relations, tackling prejudice and promoting understanding.

Yes

  • If the Marriage and Civil Partnership protected characteristic applies to this policy, the Equality Impact Assessment has also assessed against the duty to eliminate unlawful discrimination, harassment and victimisation in respect of this protected characteristic:

Yes

Declaration

I am satisfied with the equality impact assessment that has been undertaken for the review of the Gender Recognition Act 2004 and give my authorisation for the results of this assessment to be published on the Scottish Government’s website.

To Be Completed When Final Version of EQIA Is Published

Name:
Position:
Authorisation date:

The Scottish Government
December 2019


Contact

Email: family.law@gov.scot