• Here is Shirley-Anne Somerville MSP’s email 

Thank you for your recent email regarding the Gender Recognition Act. I appreciate you taking the time to share your views on this matter with me.

My office will be in touch with you to organise a time for us to talk through this matter.

I note that a key issue you have expressed an interest in discussing would be implications that changes to the Gender Recognition Act could have in terms of the existing legal rights of women with regard to safety and equality.

I understand that concerns have been raised that changes to the GRA could have implications for Women Only services, such as domestic abuse refuges. Please let me assure you that the Scottish Government is not seeking to change the existing arrangements under the Equality Act that permit these services. As you may be aware, using the exceptions in the Equality Act, organisations can decide on a case by case basis whether it is right in the circumstances to direct a trans woman elsewhere.  Services will continue to risk assess all their potential service users. Furthermore, it is already that case that domestic abuse refuges in Scotland are trans inclusive and therefore there would be no change as to how they run their services in the future under the Bill.

I also understand that concerns have been raised about the safety of women in prisons. I can advise that the Scottish Prisons Service will continue to carry out risk assessments on where prisoners should be housed.

I hope that you will find this information to be useful.  

Best wishes

Shirley-Anne

• Here is Paul Wheelhouse MSP’s email 

Many thanks for your email with the position of Haddington SNP. I’m grateful to you for sharing the views of the branch.

The 2004 Act was very much welcomed when it was introduced but, as you can appreciate, the debate has moved on since then and it is the Scottish Government’s view that the processes outlined in the 2004 Act need reform to make them less intrusive and time-consuming. 

My understanding is that the changes proposed by the Scottish Government would remove requirements for those applying to the Gender Recognition Panel to provide medical evidence and to have lived as their preferred gender for a period of two years. However, there would still be requirement to legally declare that you intend to live in your new gender for the rest of your life, and have witnesses observe that declaration. The Scottish Trans Alliance make this clear and make clear that breaking that declaration would amount to perjury. 

In that sense, it’s not the case that someone can just self-identify at any point in time to suit their needs at that time and it would, I believe, be a criminal offence to do so if there is not a genuine wish to identify as that gender. I hope this is of some reassurance to you.

The branch also appears to raise concerns over the rights of women and how they may be affected by changes to the Gender Recognition Act. I do think it’s important that we take into consideration concerns wherever they may arise, whether that be from women’s groups, trans groups or others and I think it’s clear that the Scottish Government has attempted to do that. With that in mind, I’m very encouraged to see that a number of groups supporting women’s rights are supportive of the changes that are proposed by the Scottish Government including Rape Crisis Scotland, Scottish Women’s Aid, Equate Scotland, Women 5050 and others. That’s a strong statement of belief that the changes do protect the rights of women and prevent misuse. Again, I hope that provides some reassurance.

I also understand that the Scottish Government ran a consultation following a review of the Gender Recognition Act 2004 and there was an incredibly high volume of responses, over 15,000, albeit far fewer than for same sex marriage or ‘fracking’. I’m advised that the majority of those responding to this consultation said that they agreed with the introduction of a self-recognition declaration process, and also that 16 and 17 years-olds should have a right to go through that process. 

I have every faith that Ministerial colleagues will work with those from both LGBT groups and women’s groups to ensure that anything that is brought forward is proportional and does not adversely affect the rights of women. I have not yet discussed the issues in the proposals in depth with my Ministerial colleagues at this stage but I will have the opportunity to do so before the legislative changes are voted on, so if there remain any matters that you feel particularly of concern, I may yet have the chance to seek clarification on them, if needed.

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Thank you for your letters of 31 October 2018 to Jeane Freeman, Cabinet Secretary for Health and Sport, Humza Yousaf, Cabinet Secretary for Justice and Christina McKelvie, Minister for Older People and Equalities, on behalf of your constituent, has expressed concerns including about the rise in the referral of girls to gender identity clinics, trans-inclusive sport, transgender prisoners, the Equality Act 2010 (the 2010 Act) and about the Scottish Government’s consultation on reform of the Gender Recognition Act 2004 (the 2004 Act).  I am responding as I have portfolio responsibility for the Scottish Government’s commitment to reform the 2004 Act.  

The consultation on reforming the 2004 Act included a proposal that Scotland adopt a self-declaration system of legal gender recognition.  

Under our proposed system, gender recognition would remain a solemn and important step.  Applicants would be required to make a statutory declaration before a notary public or a justice of the peace.  Making a false statutory declaration is a criminal offence, the potential punishment for which includes imprisonment for up to 2 years.

Your constituent has raised issues around children and young people, including those who seek support for their distress or concern about their gender identity and girls who self-harm.  The Scottish Government has made very clear its commitment to promoting and supporting the health and wellbeing of children and young people.  We are taking forward fundamental improvements to the support systems available to young people.  This includes the establishment of a Task Force chaired by Dame Denise Coia and the Youth Commission on Mental Health.

Sexual crime and the sexual harassment of young girls is clearly unacceptable: the safety of children and young people is of crucial importance.  The Scottish Government is committed to tackling sexual harassment, misogyny and gender based violence including in schools through a range of actions.  In particular, the Equally Safe Delivery Plan includes 118 actions including a number specifically targeted at schools and young people: https://beta.gov.scot/binaries/content/documents/govscot/publications/publication/2017/11/equally-safe-delivery-plan-scotlands-strategy-prevent-violence-against-women/documents/00528064-pdf/00528064-pdf/govscot:document/.

Your constituent refers to a media report of the numbers of young people attending a gender identity clinic at the Tavistock and Portman in London. In Scotland, people aged under 18 who are seeking support receive assistance through the Young Person’s Gender Service at Sandyford, Glasgow (at https://www.sandyford.org/sandyford-sexual-health-services/what-are-our-services/gender-identity-service/). The Child Rights and Wellbeing Impact Assessment which forms part of our consultation on the 2004 Act noted existing evidence regarding the increase in the numbers of young people being referred to, or seeking help from Sandyford (at https://www.gov.scot/publications/review-gender-recognition-act-2004/pages/25/).

Respondents to our consultation have also raised concerns about this increase, and some have raised specific concerns around girls.   We will consider further if there is action we should take, such as carrying out research.

Your constituent has expressed concerns that some organisations and agencies have adopted policies about the inclusion of trans people.

The 2010 Act protects people from discrimination because of certain protected characteristics, which include sex and gender reassignment. The Equality and Human Rights Commission (the EHRC), which has legal responsibility for enforcing the 2010 Act says that:

“To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender…You can be at any stage in the transition process – from proposing to reassign your gender, to undergoing a process to reassign your gender, or having completed it.”

Trans people do not require to have been legally recognised in their acquired gender under the 2004 Act in order to be protected by the provisions of the 2010 Act. The 2010 Act permits an inclusive approach towards trans people, but also creates safeguards for the rights and interests of others.  

In relation to sport, as your constituent notes, the 2010 Act contains exception permitting the exclusion of a trans person from a gender affected activity, where it is necessary to do so for reasons of fair competition or the safety of competitors. The EHRC advise that under these arrangements:

“An association must not restrict the participation of a transsexual person in such competitions unless this is strictly necessary to uphold fair or safe competition. In other words, a transsexual person should be treated as belonging to the sex in which they present (as opposed to the physical sex they were born with) unless there is evidence that they have an unfair advantage, or there is a risk to the safety of competitors which might occur in some close-contact sports.”

Your constituent may wish to be aware of the Sports Council guidance from 2015 on the application of the existing arrangements at: http://equalityinsport.org/wp-content/uploads/2015/12/Transsexual-People-Eligibility-to-Compete-in-Domestic-Competition.pdf.  

Our consultation on reform of the 2004 Act did not propose to seek any change to the exceptions from gender reassignment discrimination, such as for sport or single sex or separate sex services like domestic abuse refuges.  Equality law (including the 2010 Act) is largely reserved to Westminster though the Scottish Parliament has some limited powers in this area. As your constituent notes, the UK Government’s consultation on the 2004 Act has confirmed that that they do not intend to take forward any change to the exceptions under the 2010 Act following on from reform of the 2004 Act.

On your constituent’s concerns regarding the operation of prisons, we cannot comment on individual prisoners.  Both the Scottish Government and the Scottish Prison Service (SPS) take the safety and wellbeing of those detained in prison and prison staff very seriously.  

SPS conduct comprehensive risk assessments to help determine how individuals in their custody are managed including in relation to their accommodation and any decisions are subject to review at regular intervals.  As your constituent notes, the SPS do not require a gender recognition certificate in the management of trans prisoners and have a published policy in place in this area: http://www.sps.gov.uk/Corporate/Publications/Publication-2561.aspx.

Following the policy is intended to ensure that there is an appropriate balance between consideration of the needs of an individual prisoner and the responsibility of managing risk and safeguarding the wellbeing of all prisoners and staff.  The policy recognises that there are times when, for reasons of safety and risk management, decisions must differ from an individual prisoner’s gender identity or gender reassignment.

Your constituent is concerned about the Equality Impact Assessment (EQIA) carried out by SPS relating to the adoption of their policy in relation to transgender prisoners.  

In Scotland, a public body listed in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (at http://www.legislation.gov.uk/sdsi/2012/9780111016718/contents) as amended is legally required to assess the equality impact of applying a proposed new or revised policy or practice.   The production of such assessments 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.  

On gender recognition generally, we have now published the independent analysis of the responses to our consultation on reforming the 2004 Act at:  https://www.gov.scot/publications/review-gender-recognition-act-2004-analysis-responses-public-consultation-exercise-report/.  

We recognise that those responding to the consultation on the 2004 Act raised a number of points, both for and against the proposed reform. Since the consultation closed, I have met with a range of groups, including those opposed to reform of the 2004 Act.  We will consider all the points raised by respondents very carefully as we think about our next steps.