Period Products (Free Provision) (Scotland) Act 2021: Equality Impact Assessment

Equality Impact Assessment - Results

Title of Policy: Access to Free Period Products - Period Products (Free Provision) (Scotland) Act 2021

Summary of aims and desired outcomes of Policy: The Period Products (Free Provision) (Scotland) Act 2021 places duties on local authorities and education providers to make period products obtainable free of charge for anyone who needs to use them. Building on existing voluntary policies, the Act ensures that everyone in Scotland who menstruates can have reasonably convenient access to period products, free of charge, as and when they are required.

Directorate: Division: team: Directorate for Tackling Child Poverty and Financial Wellbeing: Tackling Child Poverty and Financial Wellbeing: Financial Wellbeing Unit

Executive summary

The Scottish Government (SG) believes being able to access period products is fundamental to equality and dignity. Since 2018/19 the SG has put in place policies to support equality, dignity and rights for those who menstruate.

On 22 June 2020, the Period Products in Schools (Scotland) Regulations 2020^[1] were laid in the Scottish Parliament. Those Regulations, which came into force on 19 October 2020, place a duty on local authorities and grant-aided schools to provide free period products for pupils.

The Period Products (Free Provision) (Scotland) Act 2021^[2] ("the Act") was passed by the Scottish Parliament on 24 November 2020 and received Royal Assent on 12 January 2021. The Act places duties on local authorities and education providers to make period products obtainable free of charge for anyone who needs to use them, building on existing voluntary policies. The Act ensures that everyone in Scotland who menstruates can have reasonably convenient access to period products, free of charge, as and when they are required.

While bodies on whom duties are placed by the Act ("responsible bodies") have flexibility around how they meet those duties, they must meet three overarching principles, namely ease of access, dignity and reasonable choice. Responsible bodies must also have regard to guidance^[3] issued by Scottish Ministers, consult product users, and publish statements on the exercise of their functions. This will ensure that a high standard of service delivery is in place across Scotland in accordance with the Act and responsible bodies are encouraged to seek to learn from good practice to enhance and/or refine delivery.

This Equality Impact Assessment (EQIA) is intended to supplement and update the EQIAs undertaken in 2018 for period product provision in education settings^[4] and draws on the EQIA undertaken for access to period products in SG Buildings^[5].

The SG has reviewed all of the previous EQIAs, as set out above, and the latest evidence available (Annex A). All of the impact previously assessed remains relevant for the Act. We have identified some potential impacts on the protected characteristics and no negative impacts have been identified. However, there continues to be evidence gaps meaning the potential impact on certain groups is either unknown or not well understood. However we will seek to close those gaps as part of the monitoring and review of this EQIA.

As set out in the Act and the Guidance issued, responsible bodies have an obligation to consult with people who may need to access free period products on the ways in which the products should be available, where they should be available and what types of products should be available. The guidance encourages particular consideration for those who may face additional barriers in accessing period products and recommends that consultation should take place with organisations representing groups with additional barriers, to ensure their needs can be met with reasonable ease. This, along with the wider consultation process and further evidence gathering by the SG which is currently taking place, will help increase our understanding and will potentially help mitigate any negative impacts and maximise positive impacts on protected characteristics.

In line with best practice, we will continue to monitor policy delivery and will keep the EQIA under review.

Background

The SG believes being able to access period products is fundamental to equality and dignity. Since 2018/19 the SG has put in place policies to support equality, dignity and rights for those who menstruate, across a range of settings, including schools, colleges, universities and wider public spaces.

On 22 June 2020, the Period Products in Schools (Scotland) Regulations 2020 were laid in the Scottish Parliament. Those Regulations, which came into force on 19 October 2020, place a duty on local authorities and grant-aided schools to provide free products for pupils.

Across 2018-22, the SG provided around £1.86 million to deliver access to period products for low income families through third sector partners via FareShare. The funding was also used to support Community Development Workers in FareShare's main centres to help break down barriers and address stigma associated with menstruation.

Since 2019, the SG has provided £2.8 million per year to local authorities to provide wider access to free period products across Scotland.

On 23 April 2019, the Period Products (Free Provision) (Scotland) Bill^[6] was introduced to Parliament through a Member's Bill, which would create a universal right of access to free period products for everyone in Scotland. Following significant amendments, the Bill passed Stage 3 on 24 November 2020, and gained Royal Assent on 12 January 2021 to become the Period Products (Free Provision) (Scotland) Act 2021 ("the Act").

The Act places a duty on local authorities and education providers to make period products obtainable, free of charge, for anyone who needs to use them. While bodies on whom duties are placed by the Act ("responsible bodies") have flexibility around how they meet those duties, they must meet three overarching principles: the products must be available with dignity, reasonable ease and they must provide reasonable choice.

As set out in the Act, the main duties on local authorities and education providers must be brought into force within two years of the date of Royal Assent. It was agreed in consultation with COSLA and the Scottish Funding Council that bringing the Act fully into force at the start of the 2022-2023 academic year would be the most appropriate timing (15 August 2022).

However, there are a number of steps to be undertaken by Responsible Bodies and Ministers before the Act comes fully into force. Therefore, sections 5, 6 and 7 of the Act were commenced through Regulations on the 18th March 2021 to allow Ministers and Responsible bodies to undertake preparatory work in advance of the substantive duties coming into force.

On 27 September 2021, Scottish Ministers issued guidance^[7] under Section 5 to local authorities and education providers as to the exercise of the functions placed on them by the Act. Local authorities and education providers must, when putting in place arrangements to exercise their functions, have regard to the Guidance issued. This Guidance aims to ensure that a high standard of service delivery is in place across Scotland in accordance with the Act. Responsible bodies are also encouraged to seek to learn from good practice to enhance and/or refine delivery throughout implementation.

Under section 7, Responsible Bodies have an obligation to consult with people who may need to access free period products on the ways in which the products should be available, where they should be available and what types of products should be available. Responsible bodies then have to decide on, and put in place, local arrangements that will ensure they meet their duties under the Act. Under section 6, Responsible Bodies have to publish a summary of these arrangements and also provide information to the public about where and how period products can be obtained for free.

The Scope of the EQIA

The Public Sector Equality Duty (PSED) requires the SG to pay due regard to its obligations under the Equality Act 2010^[8] by assessing the impact of applying a proposed new or revised policy or practice upon equality.

An EQIA aims to consider how a policy may impact, either positively or negatively, on different sectors of the population in different ways. Equality legislation covers the Protected Characteristics (PCs) of: age, disability, gender reassignment, sex, pregnancy and maternity, marriage and civil partnership, race, religion and belief, and sexual orientation.

The SG completed an EQIA^[9], a Business and Regulatory Impact Assessment^[10], a Children's Rights and Wellbeing Impact Assessment^[10] and a Strategic Environmental Assessment pre-screening notification^[11] on the voluntary policy currently in place. An EQIA was also completed for access to free period products in SG Buildings^[12].

The EQIAs found that neither of the voluntary policies currently in place was discriminatory on the basis of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation. There were no negative impacts identified on children's rights and wellbeing and we did not consider there to be any significant impacts on privacy. Evidence on impact on the environment is still to be fully understood.

This EQIA is intended to supplement the EQIAs undertaken in 2018 and 2019. Specifically, the EQIA considers impacts on equalities groups based on the three tests:

• Does this policy eliminate discrimination for each of the 9 protected characteristics (PC). If not is the discrimination justifiable? Can it be mitigated?
• Does this policy advance equality of opportunity for PC groups?
• Does this policy foster good community relations between people of PC groups?

Consultation Process

In developing the voluntary policy in education settings, the SG established a Working Group which included representation from the Convention of Scottish Local Authorities (COSLA), Colleges Scotland, Universities Scotland, College Development Network, Young Scot, National Union of Students, Scottish Funding Council, Scotland Excel and the Advanced Procurement for Universities and Colleges Ltd (APUC).

The Working Group's role was to support the development, implementation and delivery of the policy as it relates to educational settings. It was also instrumental in the development of the policy's Guiding Principles^[13] which informed the Particular Requirements in the Act and some elements of the Guidance published under the Act.

The SG also had discussions with a number of retail businesses and retailers' groups to develop an understanding of their views of the voluntary policy, innovative approaches, how to ensure best value and to work in partnership. This included engagement with; Scotmid; Co-op; Boots; National Federation of Retail Newsagents; Lidl; Scottish Grocer's Federation; Sainsbury's and Asda.

There was also significant consultation undertaken by the Member in charge on the Period Products (Free Provision) (Scotland) Bill during its development. The evidence from this consultation was also considered for this EQIA and can be found in Annex A.

Implementation of the Act and Consideration of Equalities

Subject to the statutory requirements highlighted above, it is for individual local authorities and education providers to decide what works best in their area, delivering to respond to local need and circumstances – both in terms of tackling poverty and addressing the overarching gender equality and dignity issues that affect all of those who menstruate, regardless of income.

However, the Act sets out a number of overarching principles which all responsible bodies should follow in discharging their duties under all sections of the Act, namely that the products must be available with dignity, reasonable ease and provide reasonable choice.

Meeting Individual Needs

The Act states that sufficient products must be obtainable for free to meet a product user's needs either while in Scotland (Section 1) or during term time (Section 2). In relation to Section 3, sufficient products should be obtainable to meet an individual's needs while they are on the premises of education settings.

The Guidance states there must be no judgement as to the need, no limit to the amount of products an individual can take, nor attempts to 'ration' products. Individuals do not need a reason to access the products, above and beyond the fact that they menstruate. However, we know that individual needs in terms of period products could vary considerably due to a variety of circumstances, including; a period starting unexpectedly or forgetting to bring a product from home; ongoing need due to low income; ongoing need for another reason and/or; higher than average need due to a medical condition.

However in all cases, an individual should be able to access sufficient products to meet their needs and the principles set out in this Guidance should be met, regardless of how the need arises.

Reasonably Easily

The Guidance states that where and how free products can be obtained should be neither complex nor bureaucratic. Products should be freely accessible from places where individuals are comfortable doing so without having to ask for them, or justify why they need them or the amount needed. Reasonable ease should include ease of physical access for those with physical disabilities or mobility issues. The statutory duty to providing information to the public should contribute to the products being reasonably easy to obtain.

Respect for Dignity

Period products should be obtainable in a way that respects the dignity of individuals obtaining them. As highlighted above, this principle has been in place since the SG first made a commitment to make period products available for free. Dignity should therefore already be underpinning voluntary delivery, however it becomes a statutory requirement when the Act comes into force.

While progress has been made in recent years to tackle the stigma associated with menstruation and period products, people who need to access period products for free may still find this an embarrassing situation and any potential embarrassment should be minimised as much as possible. Therefore, the guidance states the ways in which, and places where, products are made obtainable should consider the needs and wishes of users in relation to privacy (including for religious and/or cultural reasons) and avoiding anxiety or embarrassment.

As part of wider work to tackle the stigma around menstruation and period products, responsible bodies should consider the importance of normalisation and visibility. There is no statutory definition of dignity in relation to the Act. However, the guidance states a dignified approach would ensure that products could be easily accessed in a place where individuals are comfortable doing so, as identified through consultation.

Inclusion

Not everyone who menstruates identifies as female, therefore as part of ensuring a dignified approach, responsible bodies must ensure that the arrangements put in place to meet their duties allow any individual who menstruates, including transgender men and non-binary individuals, to access products. The guidance further states that the language that is used in consultation, published arrangements and delivery should be considerate of sex and gender equalities. In addition, in some cases men may wish to access products for free for family members or partners.

In practice this is likely to require products to be available for free in, for example, at least some gender neutral toilets, disabled toilets (where these are recommended for use by people who menstruate but do not wish to use female toilets), or male-only spaces.

Reasonable Choice

Which type of period product an individual uses is a matter of personal preference that responsible bodies must take into account when deciding which products to make available free of charge in meeting their duty.

Responsible bodies are required to provide for a reasonable choice of different period products to be available, although the full range of products does not have to be available in all locations or through all delivery methods. The guidance highlights that local authorities and education providers would be expected to make at least one type of tampon, sanitary towel and reusable product available.

Responsible bodies must consult on the types of products that people would like to be made available. However in terms of best practice and meeting individual needs, providing for reasonable choice would include offering a choice of different sizes and/or absorbencies of single use products and, in relation to local authorities, more than one type of reusable product.

Consideration of the environmental impact of single use period products

The environmental impact of single use period products is considerable and there is growing interest in reusable period products. All responsible bodies should consider the most appropriate way to make reusable period products available for free for those who wish to use those types of products, through consultation.

The Guidance highlights that there should be no pressure applied to people who do not wish to use reusable products but consideration should be given to making sustainable or plastic-free products available as part of the choice of products.

Individuals who may face additional barriers to accessing products

As set out in the Guidance, some people may face additional barriers to accessing free products for example, disabled people, homeless people, gypsy/travellers, victims of domestic abuse, individuals with caring responsibilities, individuals living in remote locations and those affected by cultural barriers.

When considering their arrangements, local authorities should give particular consideration to any additional barriers individuals in these, or other, groups may encounter in trying to access free products. The guidance recommends that organisations representing these groups locally are specifically and/or separately consulted on potential additional or alternative arrangements that might need to be put in place to ensure their needs can be met with reasonable ease.

Assessing the Impact and Opportunities to Promote Equalities

Having considered the data and evidence gathered (available in Annex A), this section summarises the potential impacts that the Act might have on each protected characteristic. Please note, the SG does not require assessment against Marriage and Civil Partnership unless the policy relates to work, therefore an assessment against this protected characteristic was not included.

Protected Characteristic and EQIA considerations: Age

• Eliminating unlawful discrimination, harassment and victimisation – None
• Advancing equality of opportunity – Positive
• Promoting good relations among and between different age groups – none

Overview of Impact:

The Act provides access to free period products for everyone who menstruates and therefore is likely to have a positive impact across a range of ages as set out below

However, evidence suggests that some young people may have particular issues accessing period products e.g. do not have financial independence to purchase products, embarrassment and stigma around discussing menstruation.^[14] Some qualitative and anecdotal evidence highlights that this may impact on their wellbeing and attendance at school. Therefore, the Act is likely to have a positive impact on young people in particular and might benefit their wellbeing and participation in education.

We know that heavy and irregular periods can be experienced during perimenopause, therefore access to products may also be beneficial for this group.

Specific action and/or mitigation:

As set out in the Guidance, the consultation that is carried out by all responsible bodies should be accessible by individuals of any age and consultation in schools must include pupils who may need to use products in the future, so must be open to pupils who are not yet menstruating. The Guidance encourages consultation and delivery design in schools to be linked to menstrual health education and tackling stigma. Consideration should be given to producing materials that are child and youth friendly.

Protected Characteristic and EQIA considerations: Disability

• Eliminating unlawful discrimination, harassment and victimisation – None
• Advancing equality of opportunity – none
• Promoting good relations among and between different groups - none

Overview of Impact:

There is a lack of evidence on how the Act may impact on disabled people. However, we know that disabled people and the children of disabled parents are more likely to experience poverty, and therefore access to free period products might be of particular benefit for this group^[15]. In addition, we know that some disabled people may face additional challenges to managing their menstruation, especially those with limited physical abilities and as a result, may be limited in the type of products they can use.

Therefore, as set out in the Act, a variety of products should be available. We also know that there are a range of medical conditions that can impact on a person's menstrual cycle, for example causing irregular or heavy periods^[16]. Therefore, the Act could help these people in particular to access period products as required.

Specific action and/or mitigation:

As set out in the Guidance, when considering their arrangements, responsible bodies should give particular consideration to any additional barriers disabled people may encounter in trying to access free period products. The overarching principle which states that products should be reasonably easy to obtain, also includes ease of physical access for those with physical disabilities or mobility issues.

The Guidance recommends that responsible bodies specifically and/or separately consult people who are disabled and local organisations representing them on potential additional or alternative arrangements that might need to be put in place to ensure their needs are met with reasonable ease.

Gender Reassignment

• Eliminating unlawful discrimination, harassment and victimisation – None
• Advancing equality of opportunity – Positive
• Promoting good relations among and between different groups - none

Overview of Impact:

The Act provides access to free period products for everyone who menstruates and therefore is likely to have a positive impact regardless of gender identity.

However, evidence suggests that transgender people may experience greater difficulty accessing period products, because menstruation is not associated with their gender identify^[17]. This may impact their wellbeing and can be a source of stress, anxiety and dysphoria. Therefore, the inclusive approach for access to free period products as set out in the guidance, is likely to be beneficial for this protected characteristic.

As set out in the Guidance, as part of ensuring a dignified approach, responsible bodies must ensure that the arrangements put in place to meet their duties allow any individual who menstruates, including transgender men and non-binary individuals, to access products. The language used in consultation, published arrangements and delivery should be considerate of equalities.

Protected Characteristic and EQIA considerations: Sex

• Eliminating unlawful discrimination, harassment and victimisation – None
• Advancing equality of opportunity – None
• Promoting good relations among and between different groups – None

Overview of Impact:

The Act provides access to free period products for everyone who menstruates. The inclusive language used, is therefore likely to be of significant benefit to all who menstruate. Individuals can also access products for free for family members or partners. Therefore, the Guidance states, products should be available in some gender neutral toilets, disabled toilets and men -only spaces.

Specific action and/or mitigation:

As set out in the Guidance, as part of ensuring a dignified approach, responsible bodies must ensure that the arrangements put in place to meet their duties allow any individual who menstruates, including transgender men and non-binary individuals, to access products. The language used in consultation, published arrangements and delivery should be considerate of equalities.

Protected Characteristic and EQIA considerations: Pregnancy and Maternity

• Eliminating unlawful discrimination, harassment and victimisation – None
• Advancing equality of opportunity – None
• Promoting good relations among and between different groups - None

Overview of Impact:

We know that during pregnancy and maternity, people may require access to period products (for example due to spotting), therefore they may also benefit from this policy. Pregnancy brings a period of sudden increased financial pressure and sustained money worries have been reported following the birth of a baby, increasing the risk of poverty.^[18] Therefore, access to free period products may be of particular benefit to this group.

Specific action and/or mitigation:

Further research is required to understand access to period products for this protected characteristic group.

Protected Characteristic and EQIA considerations: Race

• Eliminating unlawful discrimination, harassment and victimisation – None
• Advancing equality of opportunity – None
• Promoting good relations among and between different groups - None

Overview of Impact:

There is a lack of evidence on how this policy may impact on race. However, the Act provides access to free period products for everyone who menstruates and is likely to have a positive impact regardless of people's race. We know that some minority ethnic groups are more likely to experience poverty and therefore may benefit from access to free period products.^[19]

We also know that cultural beliefs concerning menstruation may restrict access and use of certain types of products (for example, tampons)^[20]. Therefore access to a variety of products may be of particular benefit to some ethnic groups.

Specific action and/or mitigation:

As set out in the Guidance, when considering their arrangements, responsible bodies should give particular consideration to cultural barriers people may encounter in trying to access free products. The Guidance recommends that organisations representing these groups locally are specifically and/or separately consulted on potential additional or alternative arrangements that might need to be put in place to ensure their needs can be met with reasonable ease.

Consideration should be given to producing materials in languages spoken by minority ethnic communities in Scotland.

Protected Characteristic and EQIA considerations: Religion and Belief

• Eliminating unlawful discrimination, harassment and victimisation – None
• Advancing equality of opportunity – None
• Promoting good relations among and between different groups - None

Overview of Impact:

There is a lack of evidence on how the Act might impact on this protected characteristic. However, the Act provides access to free period products for everyone who menstruates and is likely to have a positive impact regardless of people's religion.

We know that some religions are more likely to experience poverty^[21] and therefore may benefit from access to free period products.

We also know that religious beliefs concerning menstruation may restrict access and use of certain types of products (for example, tampons). Therefore access to a variety of products may be of particular benefit to some religious groups.

Specific action and/or mitigation:

As set out in the Guidance, when considering their arrangements, responsible bodies should give particular consideration to cultural barriers people may encounter in trying to access free products. The Guidance recommends that organisations representing these groups locally are specifically and/or separately consulted on potential additional or alternative arrangements that might need to be put in place to ensure their needs can be met with reasonable ease.

Protected Characteristic and EQIA considerations: Sexual Orientation

• Eliminating unlawful discrimination, harassment and victimisation – None
• Advancing equality of opportunity – None
• Promoting good relations among and between different groups - None

Overview of Impact:

There is a lack of evidence on how this policy may impact on sexual orientation. However, the Act provides access to free period products for everyone who menstruates and is likely to have a positive impact regardless of people's sexual orientation.

Specific action and/or mitigation:

As set out in the Guidance, as part of ensuring a dignified approach, responsible bodies must ensure that the arrangements put in place to meet their duties allow any individual who menstruates to access products. The language used in consultation, published arrangements and delivery should be considerate of equalities.

Conclusion

The SG believes being able to access period products is fundamental to equality and dignity. Since 2018/19 the SG has put in place polices* to support equality, dignity and rights for those who menstruate. From the outset we have worked with a range of partners and have ensured the voices of stakeholders are heard and that services can continue to be adapted at a local level to meet the needs of people who menstruate. We are proud of what has been achieved across the public, third and private sector through partnership working, including significant culture change which is not just tackling period poverty, but supporting wider gender equality.

Building on the voluntary provision in community settings and the Schools Regulations, the Period Products (Free Provision) (Scotland) Act 2021, will place a statutory duty on local authorities and education providers to ensure that everyone in Scotland who menstruates can have reasonably convenient access to period products, free of charge, as and when they are required. Subject to some statutory requirements, it is for individual local authorities and education providers to decide what works best in their area, delivering to respond to local need and circumstances

The evidence collected satisfied the SG that there continues to be a clear need and support for providing access to free period products for everyone who menstruates. The inclusive language used within the Act, the Guidance and through the consideration of the overarching Principles will allow for a high standard of service delivery across Scotland, so that everyone who menstruates will have reasonably convenient access to period products, with a reasonable choice of products, in a dignified manner that is considerate of equalities.

We have identified some potential impacts on the protected characteristics and no negative impacts on equality have been identified from implementation of this policy. Providing access to free period products is likely to be of significant benefit to all who menstruate and those on low incomes. Continuing to provide access to free period products in education settings is likely to have a positive impact on all individuals who menstruate in school, colleges and universities. However, in line with best practice we will keep this under review as part of the monitoring of this EQIA.

There continues to be evidence gaps meaning the potential impact on certain groups is either unknown or not well understood, for example race, religion or belief, sexual orientation, pregnancy and maternity and people who are disabled.

However, as highlighted there are statutory requirements on responsible bodies to consult with people who may need to access free period products on the ways in which the products should be available, where they should be available and what types of products should be available. Consideration and consultation should also take place for those who may face additional barriers in accessing period products.

This consultation process and further evidence gathering by the SG which is currently taking place, will help increase our understanding and potentially reduce any negative impacts on protected characteristics.