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Position taken by the EHRC on reform of the Gender Recognition Act 2004

Letter from the Cabinet Secretary for Social Justice, Housing and Local Government to the Equalities and Human Rights Commission, 31 January 2022

Dear Kishwer,

Thank you for your letter of 26 January, following our meeting on 21 January.

In your letter you set out the new position taken by the EHRC on reform of the Gender Recognition Act 2004. As this would appear to be a significant policy change from your responses to both the Scottish Government public consultation exercises, I am writing to request some additional clarification.

The responses from EHRC to the Scottish Government public consultation exercises

The EHRC consultation response of March 2018 set out support in principle to the proposed reforms, stating that “The Gender Recognition Act 2004 is far removed from reflecting the best practice embodied by the Yogyakarta Principles, Resolution 2048 and several European states and has a significant negative impact on the lived experience of trans people” and that “this review and reform is therefore needed to secure and enhance the right to legal recognition of trans people in Scotland.” It highlighted in particular that the current mechanism for obtaining gender recognition presents barriers to trans people and that this contributes to a significant majority of trans people not making use of the process.

The response of March 2020 reaffirmed this support for reform: “The Commission considers that a simplified system for obtaining legal recognition of gender through a change in legal sex would better support trans people to live their lives free from discrimination, and supports the aims of the draft Bill.” This response set out the EHRC’s support for specific reforms in the draft Bill, including removing evidence requirements from the process noting that these “can cause unnecessary delays and potentially prolonged distress for those seeking legal recognition” and lowering the minimum age for applicants to 16.

Similarly, the EHRC’s response to the UK Government’s 2018 consultation on their proposals for changing the Gender Recognition Act sets out clear support for reform and comments: “The process for seeking legal gender recognition should not perpetuate the false assumption that being trans is a mental illness, and should therefore not rely on any medical diagnosis or intervention” and “The Commission supports de-medicalising the process for obtaining a GRC”. This statement you backed by evidence from the World Health Organisation and Resolution 2048 of the Assembly of the Council of Europe.

It would be helpful to understand what if any of the points raised in those responses still represent the position of the EHRC; whether you now consider the negative impacts on trans people of the current system which you identified in those responses no longer exist; the evidence base for your significant policy change; the legal basis for the change; and the details of the consultation you carried out to inform this change of position.

I would also be interested if any other policy positions in relation to equality, human rights, or discrimination have also undergone review and change, and if so what these are so we can be aware.

EHRC position during the 2021 Scottish Parliament election

The EHRC also published a briefing note ahead of the Scottish Parliament election of May 2021. This again highlighted the need for reform as one of seven key policy priorities, stating: “The process for gender recognition must be simplified. A de-medicalised system to change legal sex will better support trans people to live their lives free from discrimination.”

As I am sure you will be aware, the manifestos of the SNP, Scottish Labour, Scottish Greens, and Scottish Liberal Democrats all included commitments to reform the process – therefore the majority of current MSPs were elected on these commitments.

The other priorities set out in that note included safeguarding equality and human rights, incorporating UN human rights treaties into Scots law, and making the Public Sector Equality Duty as effective as possible. Given the apparent change in EHRC’s position on gender recognition reform, I would be grateful if you could confirm whether any of the other key priorities you set out just nine months ago have changed.

Your description of proposed reforms

I would also like to address your representation of our proposed reforms as set out in your letter. You describe the reforms as “extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point.” As set out in the draft Bill published in December 2019, the proposed reforms will still require a set period of living in the acquired gender, and a statutory declaration that the applicant intends to live permanently in their acquired gender, as under the current process.

Your response to our first consultation demonstrates your understanding of this point: “Requiring applicants to provide a statutory declaration confirming that they understand the consequences of obtaining legal gender recognition, do so of their own free will and intend to live in their acquired gender until death will ensure that people are more likely to consider the consequences of their decision.” It is therefore surprising this appears to have been misrepresented in your letter.

Basis for EHRC change in policy

I would be grateful for a more detailed explanation of the basis for EHRC’s significant policy shift on this issue. You have not set out any explanation of what consultation activity, evidence or legal basis has led to this change.

Your letter refers to “some lawyers, academics, data users and others” raising concerns about potential implications and then briefly lists examples of issues including data collection and competitive sport, and states that more detailed consideration is needed before any change is made. As you will be aware, we have undertaken two public consultation exercises and published the independent analyses of responses, which present the range of views we have received and which we have considered in preparing the Bill for introduction.

The Scottish Government has set out why we do not consider amending the process for applying for legal gender recognition will impact on each of the issues you mention, and I am happy to set out our views again if helpful. Further clarification on EHRC’s position on those concerns is needed in order to understand the basis for your change of position.

Many of the concerns that have been raised about the proposed reforms relate to the application of the Equality Act 2010. We have stated our view that the exceptions in the Equality Act including those that protect single sex services will not be affected by the reforms. This is consistent with the view expressed by the EHRC in its March 2020 consultation response, which stated: “the operation of exceptions does not depend on the existence of a GRC, and they would continue to operate as they do now – and have done since 2010 – should the draft Bill become law”.

I am concerned that Great Britain’s national equality body, which is committed to challenging discrimination, promoting equality of opportunity and protecting human rights, has apparently reversed its view on an issue it has previously and repeatedly highlighted as having a significant negative impact on the lived experience of trans people who wish to apply for legal gender recognition, without setting out in detail your reasons and evidence base for this significant policy change.

I find the references in your letter to the concerns raised by individuals, and issues which in our view will not be impacted by the proposed reforms, to be unclear. I would therefore welcome a more detailed explanation of the evidence EHRC has considered in reaching this position. I would also welcome a description of how the Scotland Committee of EHRC has fed into this process and whether they are in agreement with the decision made by the Board of Commissioners.

Tone and impact of the debate

Finally, I share your concern about the distress which the current polarised debate is causing to people who support and those who oppose our proposed reforms, and I welcome your commitment to working together to support a careful and respectful discussion.

I note that the publication of your letter to me on social media alongside a statement on conversion therapy has caused significant concerns, and I invite you to reflect on responses you have received from individuals and organisations and to provide further clarity on how you have arrived at your position.

Yours sincerely,

Shona Robison

Cabinet Secretary for Social Justice, Housing and Local Government