Review of the Gender Recognition Act 2004: consultation analysis

Analysis of responses to our public consultation, held as part of review of the Gender Recognition Act 2004. We were seeking views on proposals for reform of the legal gender recognition system in Scotland.

7. Conclusion

Impact Assessments

7.1. The consultation paper explains that, in accordance with usual practice, the Scottish Government has prepared a number of impact assessments in relation to the development of policy in this area and that four partial impact assessments are attached as annexes.

Question 15 - Do you have any comments about, or evidence relevant to: (a) the partial Business and Regulatory Impact Assessment (BRIA); (b) the partial Equality Impact Assessment (EQIA); (c) the partial Child Rights and Wellbeing Impact Assessment (CRWIA); or (d) the partial Privacy Impact Assessment (PIA)?

7.2. Around 1,180 respondents made a comment at Question 15. Although the overall level of comment was relatively low at this question, a small number of respondents, particularly organisational respondents who are opposed to the changes proposed, submitted extensive remarks.

7.3. Overall, around 1 in 4 respondents commented on the lack of detail, supporting data or evidence in the impact assessments and suggested that more work is required. In particular, the failure to identify potential negative impacts was noted. Further involvement of women’s groups and the trans community in the ongoing development of the impact assessments was also proposed by a smaller number of respondents.

7.4. There were few specific comments on the partial BRIA or PIA, with the majority of respondents concentrating their observations on the partial CRWIA or the partial EQIA. At this question, where given, the frequency of comments made are expressed as a proportion of those respondents commenting on an individual impact assessment, rather than for the question as a whole.

Partial Business and Regulatory Impact Assessment (BRIA)

7.5. The partial BRIA outlines the anticipated costs and benefits to business associated with the various options for gender recognition discussed at earlier questions. The consultation paper suggests that the change to a self-declaration system for legal gender recognition would have minimal cost implications for employers as the possibility of legal recognition already exists and the estimated number of applicants per year is low. It also noted that it is not currently possible to identify the costs of the different options for recognising non-binary people.

7.6. Only a small number of respondents commented specifically on the contents of the partial BRIA.

7.7. Amongst these respondents the most frequently raised issues were in relation to cost implications and concerns about the Scottish Government’s estimate of costs. The predominant view was that the potential number of those self-declaring and the potential costs involved have been under estimated. However, others considered the estimates appropriate. It was also suggested that any initial costs are justified by the benefits to trans people and may lead to other savings in the longer term. An alternative perspective was that costs of the level likely to be required would be excessive given the small number of people who will benefit from the proposed changes.

7.8. A small number of respondents commented on the absence of estimated costs for the different options for recognising non-binary people, including that this is reasonable since there has been no decision on the different options available. However, it was also suggested that this undermines any conclusions on the costs associated with the proposals as a whole. There was also a specific objection to the reference to costs associated with construction of a prison for non-binary people. With reference to IT costs it was suggested that periodic updates to IT systems are inevitable in any case, and that work could be spread over a period of time to reduce costs.

7.9. Respondents raised issues concerning costs for business if required to provide additional staff toilets, changing facilities or sleeping areas, with one suggestion that government grants should be available to help meet costs.

7.10. Finally, a small number of respondents suggested potential difficulties created for businesses if any staff were to oppose sharing facilities with trans colleagues.

Partial Equality Impact Assessment (EQIA)

7.11. The protected characteristics under the Equality Act 2010 are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

7.12. Around 7 in 10 respondents to Question 15 commented on the partial EQIA and, among these respondents, around 9 in 10 commented on the protected characteristic of sex – specifically in terms of their concerns for the rights and safety of women. Smaller numbers commented on sexual orientation, gender reassignment, religion or belief and disability. There were very few comments on other protected characteristics; any general comments on children have been considered in the discussion on the CRWIA.


7.13. The most frequently made point, raised by around 6 in 10 respondents, was that contrary to the partial EQIA, the proposals for self-declaration will have a profound impact on women. Around 1 in 3 respondents argued that there needs to be a specific assessment of the impact on women and girls.

7.14. Other frequently raised issues reflected those already outlined at Question 1: around 1 in 2 respondents cited effects of the proposals on access to women’s safe spaces; around 1 in 4 suggested a resulting risk of abuse; around 1 in 7 highlighted the effects on women’s sports; and 1 in 8 that the rights of trans people should not be protected at the expense of women. Smaller numbers raised issues surrounding: the distinction between sex and gender; the right to choose the sex of a person providing intimate medical or social care; the potential effects on the accuracy of statistical information relating to crime recording or equality monitoring; issues around freedom of speech and a right to disagree.

7.15. With respect to equalities issues, potential consequences for women in the workplace or the public sphere were raised by around 1 in 8 respondents. Concerns were expressed that:

  • Places on all-women short lists, or women’s places on boards or committees may be filled by trans women
  • Data on employment rates and gender pay gaps will be skewed if trans women are included.
  • Roles reserved for women may be filled by trans women. A recent appointment in the Labour Party was cited as evidence that this already happens.
  • Trans women will be eligible for other awards or quotas previously reserved for women.

7.16. In many cases it was argued that trans women were raised with the male privilege that these measures were designed to redress.

Religion or belief

7.17. The majority of those who commented on religion or belief argued that the proposed changes will impact women whose religion or beliefs prevent them from sharing spaces with men. Use of public toilets, changing rooms and refuges, and participation in sport were given as examples.

7.18. In terms of gender reassignment being contrary to religious beliefs, two Religious or Belief Body respondents expressed disappointment at the brevity of the assessment on negative impacts set out in the partial EQIA.

Sexual orientation

7.19. Respondents who commented on sexual orientation most frequently referred to a negative effect of gender reassignment for the lesbian community. It was suggested that gender non-conforming children are being encouraged to transition when they would otherwise grow up to be lesbian or gay, and that both gay and lesbian people are coming under increasing social pressure to change their gender rather than to live as gay or lesbian.

7.20. Additionally, it was suggested that lesbians may be abused or accused of transphobia if they refuse to enter sexual relationships with trans women, but that sexual orientation is based on biological sex not gender identity. It was also suggested that believing that gender identity is more important than biological sex is homophobic. Although sexual orientation is a protected characteristic, it was suggested that trans issues are being prioritised over lesbian issues and also that, when lesbian organisations or advocacy groups are joined by trans women, trans issues often take priority.


7.21. Issues raised by those respondents who commented on disability included querying assumptions made with respect to mental health – both that the higher rates of mental ill health amongst the trans community are caused by the prejudice and discrimination faced, and that mental health is improved by transitioning.

7.22. Concerns were also raised regarding links with autism, with a number of respondents citing figures relating to the proportion of children referred to the Tavistock Gender Identity Clinic who are on the autistic spectrum. Reference was also made to the frequency of Attention Deficit Hyperactivity Disorder among gender dysphoric children.

Gender reassignment

7.23. The most frequent comment was that trans rights should be protected. However, a substantial majority of those making this point added that this should not be at the expense of women’s rights. A similar number argued that the impact assessments in general only consider the rights of trans people and do not give adequate weight to the consequences for the rest of society. It was also suggested that failure to balance these interests could damage the relationships between the groups involved, and that this could be detrimental to the trans community.

7.24. Potentially negative effects on those with gender dysphoria were also suggested, with respondents arguing that self-declaration may trivialise this condition or may devalue the experience of trans women who have a GRC obtained under the present system.

Partial Child Rights and Wellbeing Impact Assessment (CRWIA)

7.25. The partial CRWIA considers which Articles of the UNCRC are engaged by the proposals and policy options identified for people under 18 and sets out the evidence that the Scottish Government has identified so far as being relevant to the assessment of these options.

7.26. Around 475 respondents made a comment about children or young people more generally or the Partial Child Rights and Wellbeing Impact Assessment (CRWIA) in particular.

7.27. Respondents most frequently raised concerns that the proposals would not be in the best interests of children, with around 1 in 3 respondents concerned that children who do not conform to gender stereotypes are being pushed towards gender transition. Further comments very much reflected themes raised by respondents who did not think that people aged 16 and 17 should be able to apply for and obtain legal recognition of their acquired gender (Question 5).

7.28. These comments included that children may be vulnerable to peer pressure and bullying or may be confused about their sexuality or vulnerable to incorrectly concluding they are trans for a range of other reasons. Small numbers of respondents referred to ‘social contagion’ and questioned whether the power of suggestion, and particularly coverage in social media, could lead children to wonder whether they too are trans.

7.29. A small number of respondents also commented on other situations in which they felt children could be exposed to messages which encourage them to consider whether they are trans or even promote being trans. Suggestions included that schools may teach that being trans is a mainstream choice or that children could be at increased risk from irresponsible mental health professionals working with children and adolescents.

7.30. Respondents commented on the need to be protected from decisions they might come to regret. There was a specific concern, raised by around 1 in 5, that the proposals could result in children undergoing medical treatment that would be irreversible and which could, for example, leave them infertile or in a prolonged state of prepubescence. However, it was also noted that the NHS Gender Identity Development Service[14] supports 'watchful waiting' for children who have issues around gender and that this allows these thoughts to develop and mature.

7.31. As at a range of earlier questions, and as also with reference to the EQIA, respondents commented on the impact the removal of female only safe spaces would have on girls. Around 1 in 4 raised this issue. Smaller numbers referenced the impact on girls’ sports.

7.32. General comments on the partial CRWIA itself included that it is based on the assumption that this law only impacts the trans community and has virtually no adverse impact on others. Overall, around 1 in 8 respondents made an observation, with points raised including that it requires further work and lacks detail. For example, an LGBT Group respondent highlighted instances in which the assessment simply states that there will be an impact but where they felt more information should be included. A small number of respondents also identified specific issues which they felt should be covered in the CRWIA. These included:

  • The high proportion of autistic children referred for gender identity issues and ensuring that these children receive specialist assessment and care
  • In line with the safe spaces issue, there is no consideration of the impact on children who are not trans of being in single sex spaces with a child who is trans.

7.33. A smaller number of respondents made specific points about how the proposals relate to the United Nations Convention on the Rights of the Child (UNCRC). It was noted that the Scottish Government uses the UNCRC as a framework to consider children’s rights when making policy decisions and that its CRWIA is used to ensure that all policies, measures and legislation protect and promote the wellbeing of children and young people. However, some respondents felt that the proposals are not line with and do not reflect the spirit of the UNCRC and that the UNCRC is not reflected adequately in the CRWIA. Specific points made included that:

  • Article 3(3), which covers the care or protection of children, particularly in the areas of safety and health, may be relevant in relation to health advice and treatment provided to trans children and to children concerned about their gender identity
  • The Scottish Government claims that Article 5 would support their proposals to allow gender recognition for children. However, the Article only refers to ‘rights recognised under the present Convention’, and the right to gender reassignment is not recognised in the text of the UNCRC.
  • Article 13, which covers a child’s right to freedom of expression, could be an issue if children are considered transphobic if they struggle to understand being trans or question a trans child. Alternatively, the right could relate to receiving information about gender identity and professionals may feel they are transphobic if they were to offer an alternative view.
  • Article 17, which covers the important function performed by the mass media and ensuring that children have access to information and material from a diversity of national and international sources, may be relevant in relation to trans children and there may be actions the Scottish Government could take in relation to the supply of information to meet the needs of individual trans children and to meet the wider needs of children
  • The Scottish Government’s claim that Article 26 on social security may be relevant to children with a non-binary gender identity looks like a desire to have non-binary identity recorded on National Insurance.

7.34. Finally, a small number of respondents raised concerns that the Scottish government has been advised solely by pro-trans organisations. A particular suggestion was that experts in child development should be consulted.

Partial Privacy Impact Assessment (PIA)

7.35. Only a very small number of respondents commented on the partial PIA.

7.36. Points made included: that any impacts of the General Data Protection Regulation should be noted; reference to exemptions in section 22 of the 2004 Act (discussed at Question 10); and concerns that a trans person’s right to privacy may allow women to be put at risk.

Question 16 - Do you have any further comments about the review of the Gender Recognition Act 2004?

7.37. Around 3,970 respondents made a comment at Question 16. In many cases these comments reiterated points made at earlier questions and, where already covered elsewhere in the report, these issues are not covered again here. Hence, while at other questions the points discussed reflect the subjects raised most frequently by respondents, this is not the case in the analysis below.

Policy development

7.38. With reference to the development of the proposals it was suggested that the Scottish Government sought the views of trans organisations but has not engaged with women’s groups. It was argued that, as a result, trans groups have had undue influence over the reforms being proposed. There were many calls to listen to women’s opinions or to consult with women’s groups before any changes are enacted. There were also suggestions that further research is needed or that some of the existing research cited in support of the Scottish Government’s position is of poor quality.

The consultation paper

7.39. The consultation paper was sometimes suggested to not be neutral in approach and it was also suggested that the questions were asked in such a way as to affirm the Scottish Government’s position. Questions about detail surrounding possible changes were sometimes seen as indicating that a decision to proceed has already been taken. There were also suggestions that the consultation paper was too long, too complicated, or lacked important definitions.

The public consultation process

7.40. A range of points was made about the consultation process and the analysis of responses including that:

  • The consultation was not adequately advertised, and many people are still not aware of the changes that are being proposed. Several respondents noted that they had only heard of it by chance or from a friend, sometimes at the last minute. It was suggested that a wider public debate is required.
  • It was suggested that groups opposed to the proposed reforms have spread information about the consultation on line and have encouraged their supporters to respond. It was suggested that this should be taken into account during analysis of responses, or that it may skew the results.
  • Limitations on who should have been allowed to respond were suggested, including that that the consultation should have been restricted to those who live in Scotland and will be directly affected. Some respondents also argued that it should be a matter only for trans people or that the views of trans people should be given greater weight.
  • The nature of hostility to the proposals (and, by extension, to the trans community) both in elements of the press and on social media, was suggested to have distressed many trans people and their supporters. It was suggested that much of the criticism has been either prejudiced or ill-informed. It was also suggested that it may be helpful to remind the media of guidelines pertaining to the reporting of trans people's identities.
  • Hostility from trans activists towards women and women’s groups who have publicly questioned the proposals was reported by respondents, with suggestions that accusations of bigotry or transphobia and threats of violence represent a concerted attempt to shut down any debate.

Suggested actions or points for the Scottish Government to consider

7.41. It was suggested that the 2004 Act is widely misunderstood and misquoted and that any reforms should include plans for dissemination of clear and accurate information regarding its purpose, limits and consequences.

7.42. There were also suggestions that the 2004 Act should be repealed, both from those who disagreed with the idea that sex/gender can be changed at all, but also from respondents who suggested it to be unnecessary in the light of the availability of same sex marriage or protections for gender reassignment under the Equality Act 2010.

7.43. With respect to the Equality Act 2010, it was argued that existing exemptions should be reviewed, retained or strengthened. It was also suggested that some organisations may already be reluctant to use these exemptions because they fear accusations of transphobia.

7.44. It was also suggested that review of the 2004 Act should include consideration of changes that would be required from local authorities and the public sector, particularly in relation to service provision. Examples included for the NHS and in relation to allocation of housing.

7.45. Increased provision of professional support and counselling services for children experiencing difficulties relating to gender was proposed as was improved funding for Gender Identity Clinics.

7.46. Education on gender identity, for schools but also for the wider public, was seen as important for improving understanding and reducing stigma. The need to raise awareness for employers was identified, as was training on trans issues for staff working for a range of bodies including the NHS, social services, local authorities and the police.


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