I recently asked SPICe (The Scottish Parliament Information Centre) for a briefing on what the issues are and where the powers sit around transgender issues and the gender recognition act reforms. Below is a factual brief prepared by SPICe that looks at the issue objectively – there is a lot of misinformation around this issue so hopefully this will clear up some things.
Introduction
The Scottish Government is proposing to reform the gender recognition process, with the aim of making it simpler for trans people legally change their gender. Gender recognition is devolved.
There are concerns that by making it simpler to change gender, some men might do so to gain access to women’s spaces and do them harm.
The Equality Act 2010, which is reserved, includes provisions that allow for single-sex spaces. It allows for women (and men) to have separate spaces and facilities, such as separate hospital wards, prisons, some health services, and women’s refuges.
If a women’s refuge wants to exclude a transwoman from the refuge, it would need to have a legitimate reason for doing so. It is not dependent on whether the transwoman has legally changed their gender by obtaining a gender recognition certificate. This is because the Equality Act provides protection to trans people because of ‘gender reassignment’, which means the trans person might be “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
Gender Recognition Act 2004 (GRA)
The GRA is UK wide legislation that allows people, at least 18 years of age, to apply for a Gender Recognition Certificate (GRC). The Scottish Parliament approved a Sewel Motion (S2M-00813) on the GRA, but gender recognition is devolved.
The GRA provides a mechanism for transgender people to apply for legal recognition in their acquired gender. The Act came into force across the UK on 4 April 2005.
The Act established the Gender Recognition Panel, made up of legal and medical members. The Panel makes decisions on issuing gender recognition certifications. To issue a certificate, the Panel must be satisfied that the person applying:
- Has, or has had, gender dysphoria
- Has lived in the acquired gender for two years before the date of the application
- Intends to live permanently in their acquired gender until death.
Gender dysphoria is described in the General Guide for all Users: Gender Recognition Act 2004 as
“…a recognised medical condition variously also described as gender identity disorder and transsexualism. It is an overwhelming desire to live in the opposite gender to that which a person has been registered at birth”.
There is no requirement under the GRA for an applicant to undergo surgery, sterilisation or hormone therapy.
Once someone has been successful in changing their gender they will be issued with a new birth certificate.
The General Guide for all Users states that once you have obtained a GRC:
“You will be entitled to all the rights appropriate to a person of your acquired gender. This will include the right to retire and receive state pension at the age appropriate to your acquired gender.”
Statistics
To date, there have been 5,233 GRCs issued across the UK, 3,806 male to female, and 1,427 female to male. See Main Tables at Ministry of Justice Tribunal Statistics Quarterly:
https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-july-to-september-2019
However, this does not necessarily reflect the number of trans people in the UK. The UK Government tentatively estimated that there are between 200,000 and 500,000 trans people in the UK. This is based on applying estimates of population prevalence from studies in other countries which suggests that between 0.35% and 1% of the UK population might be trans, although this does not include people who identify as non-binary[1].
The intention is for the next Scotland census in 2021 (and rest of UK) to include a voluntary question on trans status.
Women and Equalities Committee
The House of Commons’ Women and Equalities Committee called for a change to the GRA in 2016, following an inquiry Transgender Equality. The Committee said:
“Legislation on gender recognition and equality for trans people was pioneering, but is now outdated. The medicalised approach in the Gender Recognition Act 2004 pathologises trans identities and runs contrary to the dignity and personal autonomy of applicants. It should be updated in line with the principles of self-declaration.”
Reform of GRA
The Scottish and UK Governments have each undertaken a consultation as part of a review of the GRA:
- The UK Government consulted on the Gender Recognition Act 2004 between 3 July until 22 October 2018. It has received over 53,000 responses. The UK Government has not published any analysis to date. In response to a PQ (7280), Victoria Atkins MP, Minister for Women, said that the UK Government was considering the next steps for reform (23 January 2020).
- The Scottish Government consulted on a review of the Gender Recognition Act 2004, between 9 November 2017 to 1 March 2018. It received 15,967 responses, 15,532 from individuals and 165 from organisations. The analysis found that 60% of respondents were in favour of reforming legal gender recognition.
The Scottish Government proposed that Scotland should adopt a self-declaration system for legal gender recognition. This would mean that applicants under a Scottish system would not have to demonstrate a diagnosis of gender dysphoria or that they had lived for a period of two years in their acquired gender.
The current system of gender recognition has been said to cause humiliation and trauma to trans people. As a result, many trans people choose to transition socially and/or medically, without obtaining a GRC.
However, a number of issues were raised during both consultations, and continued to be raised after the consultations closed.
The main concern was that allowing people to self-identify would open up the possibility of men simply declaring they are women in order to access women only spaces, in order to harm women.
Further concerns were raised in Scotland about LGBT Youth Scotland’s guidance for schools on Supporting Transgender Young People (Nov 2017). This contains guidance on school toilets and changing rooms, including:
- Respect a young person’s gender identity and the facilities they want to use
- Ask them about the facilities and if they have any worries
- Create a plan with the young person, outlining what will happen and when
- Not banning them from using any particular facilities
Some had raised concerns about the safety of girls in schools as a result of the guidance.
Shirley-Anne Somerville MSP, the Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville, made a statement to the Parliament on 20 June 2019.
The Cabinet Secretary announced there would be a further consultation on a draft gender recognition bill, and that the Scottish Government would publish new guidance for trans pupils in schools.
The Scottish Government is currently consulting the Gender Recognition Reform (Scotland) Bill (17 December 2019 – 17 March 2020).
The draft bill proposes to:
- Remove current medical requirements
- Remove need to apply to the gender recognition panel, and instead apply to the Registrar General for Scotland
- Applicants must have lived in their acquired gender for a minimum of 3 months, rather than two years, before submitting an application.
- Applicants would have to confirm they intend to live permanently in their acquired gender.
- Applicants would still be required to make a statutory declaration, in front of a notary public or a justice of the peace
- It will be a criminal offence to make a false statutory declaration.
Equality Act 2010 and separate and single-sex facilities
Under the Equality Act 2010 (EA), which is reserved, it is unlawful to discriminate because of the protected characteristic of sex. However, under Schedule 3, para 27 there are a range of exceptions, including:
- The service is for, or is likely to be used by, more than one persons at the same time and a woman might reasonably object to the presence of a man (or vice versa). (EHRC Code of Practice: Services, public functions and associations, para 13.54).
Interaction between the Equality Act 2010 and the Gender Recognition Act 2004 (GRA)
There have been concerns that reforms to gender recognition might impact on the single-sex exceptions in the EA and potentially place women in danger from men who might abuse a new self-identification system.
Before setting out the interactions between the GRA and the EA, I thought it would be useful to set out how the EA defines sex and gender reassignment for the purpose of protection from discrimination.
The EA refers to ‘sex’ in binary terms – man and woman (s.11). It defines ‘woman’ as ‘female of any age’, and ‘man’ as ‘male of any age’ (s. 212(1)). This is generally understood to be in the biological sense.
The GRA allows people to legally change their sex. This means a person who was born biologically male or female, can legally become a woman or a man. Section 9 provides:
This section has no associated Explanatory Notes
- Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
Therefore, in law, a woman is either biologically female, or is someone who has legally changed their gender to be a woman, and vice versa for men.
The Equality Act 2010 (s7) definition of gender reassignment is:
(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3) In relation to the protected characteristic of gender reassignment—
(a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b) a reference to persons who share a protected characteristic is a reference to transsexual persons.
The definition of gender reassignment under the Equality Act 2010 is broad. A person would not have to have a gender recognition certificate or seek a legal change to their gender to be protected from unlawful discrimination.
Interactions between the two Acts and single-sex service
The Equality Act 2010 protects individuals from discrimination and harassment because of specified ‘protected characteristics’. This applies to the protected characteristics of ‘sex’ and ‘gender reassignment’.
Individuals are treated under the sex discrimination provisions of the Equality Act 2010 in line with their legal sex. A trans person with a gender recognition certificate is treated as having the sex recorded on their new birth certificate. A trans person who does not have a gender recognition certificate is treated as having the sex recorded on their birth certificate. All trans people, with or without a gender recognition certificate are protected from discrimination under gender reassignment.
There are exemptions in the Equality Act 2010 for single-sex services (schedule 3, para 28), but there must be a legitimate reason to exempt someone from a single-sex service.
In the UK Government’s consultation, it set out its view on the interaction between the two Acts:
“113. The Equality Act enables service providers to offer separate or differing services to males and females, or to one sex only, subject to certain criteria. These services can treat people with the protected characteristic of gender reassignment differently, or exclude them completely, but only where the action taken is a proportionate means of achieving a legitimate aim.
114. As an example, refusing a transwoman with or without a GRC access to a female toilet in a pub is likely to be unlawful, but a female only domestic violence refuge may provide a separate service to a trans woman only if it can be shown there is a detriment to other service users from including the trans woman as part of the regular service.
115. The Government is aware that, following the announcement of this consultation, there has been a lot of comment and discussion about the potential impacts of reforming the GRA on the single-sex service exception in the Equality Act.
116. We want to be absolutely clear – we are not proposing to amend the existing equality exceptions relating to single- and separate- sex services in the Equality Act. It will still be possible to exclude individuals with the protected characteristic of gender reassignment from single or separate sex services where doing so is a proportionate means of meeting a legitimate aim. The fact a trans person has legal gender recognition will form part of a service provider’s decision as to whether to provide a different, or even no service to a trans person, but having a GRC is not a complete answer.
117. Trans people with a GRC can still be excluded from single sex services, or provided with a different service if it is proportionate to do so on the facts of the individual case. Although reliance on this exception should be rare, it is most likely to be needed in particularly difficult and understandably sensitive areas, such as the provision of women’s domestic violence refuges. Whether it is proportionate to exclude a trans person would have to be judged by the service provider on a case by case basis, considering the trans person’s needs and the impact on other service users. Refuges will continue to make sensible risk-assessments of potential service users. Such assessments are required of all users, whether or not they are trans: for example the refuge might want to prevent an abusive lesbian from entering when her abused female partner is inside, or it may exclude a woman with a history of violence and instability”.
The Equality and Human Rights Commission (EHRC) set out its view on the interaction between the two Acts in its response to the UK Government’s consultation on the GRA:
“80. These exceptions to the general principle of non-discrimination allow service-providers to provide single-sex and separate-sex services where that is justified. They include, for example, women only gyms, post-natal health services, male-only or female-only hairdressers, separate hospital wards and separate prisons for men and women. They also include women-only domestic violence services and sexual assault support services.
81. The operation of these exceptions does not depend on the existence of a GRC, and they will continue to operate as they do now following reform of the GRA.
82. Separate-sex services (whether equal or different for each sex) and single-sex services (only to persons of one sex) are permitted under Schedule 3 to the EA 2010 where it is proportionate because a joint service for both sexes would be less effective or it would not be reasonably practicable because of the extent to which the service is required by one sex. A single-sex service could be appropriate, for instance, where services are used by two or more people at the same time and users of one sex might reasonably object to the presence of a person of the other sex.
83. Paragraph 28 of Schedule 3 permits different treatment of trans people in ‘anything done in relation to’ the lawful operation of separate services for the sexes and single-sex services, provided such conduct is objectively justified – ‘a proportionate means of achieving a legitimate aim’.
84. As an exception to the general principle of non-discrimination, upon which the EA 2010 as a whole is based, these exceptions apply only in situations where it is both appropriate and necessary. The action taken under the exception must be rationally connected to a legitimate aim. Where there are alternatives, the least discriminatory approach must be pursued, striking a fair balance in the particular circumstances of each case between the relevant interests of trans people, service providers and other service users.
85. Some stakeholders with whom we consulted about GRA reform expressed strong reservations about the adverse impact on women when organisations take a trans-inclusive approach, though other stakeholders pointed to evidence of trans-inclusive policies working well when adopted and carefully implemented by providers of domestic violence services to women. There is heightened anxiety at the prospect of GRA reform opening up further opportunities for perpetrators of domestic violence or sex offenders to access safe spaces created specifically for women. Some single-sex service providers also believe the operation of these EA 2010 exceptions on a case-by-case basis is too complex and legally risky to use in practice by small organisations with access to limited resources facing significant competing demands and pressures.
86. We have also been told that a growing number of funders, such as local authorities, apply equality requirements to funding criteria that make it increasingly difficult to continue to provide women-only domestic violence services. The lawful application of the single-sex provisions in the Equality Act 2010 should not, in our view, preclude an organisation securing funding.
87. While we do not consider changes to these provisions of the EA 2010 are appropriate, further consideration should be given to other ways of addressing those concerns. We recommend that the UK Government considers including a provision in the legislation reforming the GRA to put beyond doubt that having a GRC is not a determining factor in how the exceptions relating to gender reassignment discrimination apply. We consider that clear, practical guidance and other forms of assistance to help trans people, single-sex and separate-sex service providers should accompany reform of the GRA”.
See also paras 13.57 – 13.60 of the
EHRC Code
of Practice: Services, public functions and associations.
[1] UK Government Equalities Office (2018) National LGBT survey. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721704/LGBT-survey-research-report.pdf
