Update: Reply from the Scottish Government

On 22/8/18 I met with Shirley-Anne Somerville MSP, Cabinet Secretary for Social Security and Older People. This meeting covered topics such as the review of the Gender Recognition Act 2004, the increasing Sexual Harassment and sexist bullying of school girls and how it was not explicitly named within the National Anti-Bullying Approach: Respect For All, the Equality Act 2010 and the increasing use of ‘Gender’ to replace ‘Sex’ as a Protected Characteristic across many public authorities. I wrote to her afterwards summarising my points and more than two months later I received a reply.

I asked the Scottish Government to please take action on the following –

1/ The tackling of sexual harassment and sexual crimes that disproportionately affect our girls whilst at school, with the creation of specific policies and guidance being a clear priority. The existing Respect for All: Anti-bullying National Approach fails to explicitly address these issues, therefore will also fail to sufficiently record and monitor them.

The Scottish Government is committed to tackling sexual harassment, misogyny and gender based violence in schools and is undertaking a range of actions in these areas.

Respect for All: The National Approach to Anti-bullying for Scotland’s Children and Young People distinguishes between bullying behaviour and actions which may be considered criminal behaviour which could include sexual harassment and assault. The guidance is clear that if a school feels that there may be criminal behaviour then they should seek the advice of Police Scotland.

Respect for All is intended to address bullying arising from sexist prejudice and includes this statement:

“Bullying behaviour may be a result of prejudice that relates to perceived or actual differences. This can lead to behaviour and language that could manifest into racism, sexism, homophobia, biphobia or transphobia or prejudice and discrimination towards disability or faith.”

2/ Urgent research needs to be carried out regarding the recent phenomenon of Rapid Onset Gender Dysphoria, which disproportionately affects girls as seen by the 1000%+ increase in referrals to Gender Identity Clinics in recent years.

You note the increase in the number of young people who are being referred to a gender identity clinic. The Scottish Government consultation on the 2004 Act did not directly address health care and support in NHS Scotland for transgender young people or young people. On gender recognition reform, the Scottish Government consultation is clear that there is a careful balance to be struck in relation to children.

There is one gender identity service in NHS Scotland delivering multi-disciplinary services to young people under 18, the Young People’s Gender Clinic at Sandyford. The draft Child Rights and Wellbeing Impact Assessment (CRWIA) considered the available evidence about children and young people’s experience of concerns around their gender or gender identity, including about the number of children and young people who have come forward for assistance from NHS Scotland in this area.

The Scottish Government is considering the appropriate next steps in light of consultation responses, including in relation to children and young people.

3/ Review all guidance currently issued to schools from both the Scottish Government and Government funded groups. Their contents are not balanced and fail to offer protection to all vulnerable and oppressed children, in particular girls. It is crucial that the Protected Characteristic Sex within the Equality Act 2010 is applied accurately, as our girls rely on this to protect them from harassment, discrimination and victimisation.

You suggest that a “review of all guidance currently issued to schools from the Scottish Government and government funded groups is needed” as “their contents are not balanced”. I believe you may be referring to guidance on when decisions or actions of teachers or other staff in schools may constitute unlawful discrimination under the Equality Act 2010 on the basis of sex or of gender reassignment.

The Scottish Government is committed to the principles of the 2010 Act and expects schools to deliver an inclusive and supportive learning environment for every child and young person. The Scottish Government has expressed support for guidance produced by LGBT Youth Scotland “Supporting Transgender Young People”, and has provided funding towards their work to address discrimination, engage with LGBTI young people and help build the capacity of professional and public bodies. The content of LGBT Youth Scotland guidance is, of course, for them.

Equality and Human Rights Commission (EHRC) is the independent statutory body which enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Individuals can of course enforce their rights under the 2010 Act not to be subject to unlawful discrimination through the courts. In 2014, the EHRC issued guidance on the implications of the 2010 Act for schools in Scotland.

Ultimately, it is for individual schools and local authorities to reach their own decisions in the light of the particular circumstances of each case, and the law as set out in the 2010 Act.

4/ Following on from point 3, there are a growing number of Public Bodies in Scotland who are incorrectly reinterpreting the Protected Characteristic Sex and applying a definition not stated within the Act.

Girls and young women are therefore not being given the protection they urgently need. It is crucial that Equality Impact Assessments are applied to all decisions taken, as per their Public Sector Equality Duty. Will the Scottish Government remind and instruct all public authorities in Scotland of their requirement under the Equality Act 2010 to always apply and use the correct definition of the protected characteristic Sex.

You have asked that the Scottish Government “remind and instruct all public authorities in Scotland of their requirement under the 2010 Act to always apply and use the correct definition of the protected characteristic Sex” and noted that “it is crucial public sector equality impact assessments are applied to all decisions taken”.

The 2010 Act has certain protected characteristics: in general, discrimination because of a person having or being perceived to have one of those protected characteristics is unlawful, subject to certain exceptions. In terms of section 11 of the 2010 Act, in relation to the protected characteristic of sex, a reference to a person who has a particular protected characteristic is a reference to a man or to a woman. By virtue of section 212(1), references to “man” in the 2010 Act means a male of any age, and “woman” means a female of any age. The Scottish Government is strongly opposed to all forms of discrimination against women and is working to reduce and eliminate the barriers they face in Scotland.

The requirement on certain public authorities to carry out equality impact assessments is set out in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (the 2012 Regulations).

Regulation 5 specifically provides that equality impact assessments are required when a listed public authority considers the adoption of new or revised policies or practices, and also includes a requirement for public authorities to make arrangements to review and, where necessary, revise any existing policy or practice to ensure that it complies with the equality duty.

The production of equality impact assessments grounded in evidence is therefore a legal requirement, which is regulated by EHRC.

Concerns about apparent inadequacies in individual assessments may be drawn to EHRC’s attention, and it will be for EHRC to decide what remedial action is necessary.

The Scottish Government is undertaking a review of the 2012 Regulations with the aim of ensuring that the Regulations help public authorities deliver their public sector equality duty.

Translation: the Government will be taking no action on any of my points.

<< I have 5 Campaign Aims and rectifying these policies is one of them >>
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Thank you, Susan Sinclair

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