Letter Ms Somerville 06/12/19


Dear Ms Somerville,

I am writing to you from the grassroots women’s organisation, Women and Girls in Scotland, in regard to your statement to parliament in June of this year, specifically in respect to the government’s decision to replace LGBT Youth Scotland’s publication, Supporting Transgender Young People: Guidance for Schools in Scotland, with guidance the government itself is drawing up. Our group welcomed this decision by the Scottish Government, since it was our Children’s Rights Impact Assessment that demonstrated how the LGBT Youth Scotland guidance breaches the UNCRC, and which resulted in the Children and Young People’s Commissioner Scotland calling for a halt in its implementation until a full CRIA had been carried out. Our group believes that the human rights of all children should be upheld, and easily can be, so long as the human rights of all children are understood and valued, and the equality protections of all protected classes are implemented. We were also very happy to hear you commit to the following in your statement: “It is important we ensure policies we put in place protect the rights of different groups of people and avoid what may appear to be some rights taking precedence over others…everyone in Scotland deserves to know that this Government will work to promote their rights and protect them from discrimination. It is not enough for me to just say that is our aim, we must demonstrate that commitment in a way that everyone can have trust in…these issues need to be considered carefully, openly, thoughtfully and respectfully”. This indicated to us that the government would move forward in a way that would ensure the needs and rights of all protected classes would be properly considered in respect to policy making, and as such that due process will take place, and this would include openness and engaging with the appropriate diversity of perspectives when engaging with stakeholder groups, recognising there is no one voice/view that represents women or trans people, respecting the diversity of views within and between stakeholder groups, and in so doing also generating trust in the policy making process.

We mention all of this, because we wrote to the government just over a month after your statement, in order to ask for involvement as a stakeholder group in the process of drawing up school guidance for trans pupils (because girls are a stakeholder group in respect to this guidance and we are an organisation campaigning for the human rights of women and girls to be upheld). We asked for this involvement for a number of specific reasons: Firstly it was clear to us that the government had already funded guidance without ensuring it was going to be assessed against the UNCRC, and was aware that this guidance was being used in Scottish schools without any CRWIA being previously drawn up, in contravention of the government’s and indeed international standards, and as such we simply could not have faith that the government would carry out due process in regard to drawing up replacement school guidance. Secondly, it was due to our CRIA that the human rights breaches of the guidance were brought to light, so our organisation had carried out the very work that meant our input would have been extremely useful in regard to ensuring the human rights of girls were duly considered. Furthermore, the EHRC consulted our group regarding its draft school guidance for transitioning pupils, which we were able to highlight multiple issues with, and since the Scottish Government was looking at potentially incorporating the EHRC guidance into its own, we were in a position to be able to highlight the issues with that guidance too (guidance that was supposed to be published in September this year, but after consulting with Scottish organisations has still not yet been published). So on the basis of our work, we were unique in terms of the kind of contribution we could make to the process of drawing up the guidance in respect to representing girls as stakeholders – no other women’s organisations had impact assessed the LGBT Youth Scotland guidance, and, then, no other women’s organisation had both assessed the LGBT Youth Scotland guidance *and* been consulted in regard to the EHRC guidance. Thirdly, we are a grassroots organisation, that is working-class led, and which also represents the gender critical viewpoint. As such, we would have helped ensure the government was engaging with a relevant diversity of views in terms of being an organisation that is not government funded, and whose inclusion would mean the government did not only engage with middle class perspectives, and that represents the other side, as it were, of the sex and gender debate.

Therefore engaging with our group would have helped the government ensure it was doing its best to engage properly with stakeholder groups, and doing its best to give due consideration to policy, and to ensure that the rights of different groups are protected and that no one group or viewpoint was being upheld to the detriment or exclusion of other groups and viewpoints. This is exactly the kind of commitment you made, a commitment you were clear must be demonstrated – words are not enough. Furthermore, reaching out beyond government funded organisations and engaging with diverse classes and viewpoints is necessary to ensure the government is doing what it can to uphold its commitments under the Open Government Partnership. Ensuring that the government is as open, inclusive and transparent as possible regarding policy making processes, which includes ensuring there is appropriate participation and scrutiny in the policy making process, is vital to upholding the government’s commitments under the OGP in respect to openness, transparency and accountability.

Despite all of this, and despite being told our input would be valued and that the Support and Wellbeing Unit would be in touch in due course to arrange a meeting, this meeting was not offered until December (at which point we had already raised with the SWU  via email in November when we still had not heard from them regarding our meeting or received full responses to our queries, that with a publication deadline of the end of December for the guidance, this was not giving us enough time to be meaningfully involved in the process, or to be able to provide a full response to the government’s assessments and any draft guidance). When we spoke to the Head of the Support and Wellbeing Unit during our meeting, she advised us that a working group had been pulled together to draw up the guidance months ago, and that the assessments had been carried out and the draft guidance had been drawn up, and also that none of this would be shared with us for any form of feedback at all. The government had even not told us there was a working group, nor did you announce this working group in your statement despite announcing the other working groups. And considering our emails regarding this matter to the SWU since the summer, we consider this not only a lack of transparency, but also a withholding of information on their part, that meant we could not challenge this at the time (i.e. months ago when the process was still happening).

When we asked who was included in this working group to represent girls as stakeholders, we were told they only included Engender, Scottish Women’s Aid and Rape Crisis Scotland. Not only are all these organisations government funded, but none of them are gender critical, and none of them directly represent a working class viewpoint, and none of them have taken opposing views to each other or indeed to the Scottish Government or to LGBT Youth Scotland publicly regarding sex and gender policies, so they don’t represent a diversity of viewpoints on multiple notable counts. Furthermore, none of them took the position that the former LGBT Youth Scotland guidance presented any kind of issue for girls, despite the human rights breaches of that guidance, and none are representative of those who view such guidance as having a detrimental impact on girls as stakeholders. And lastly, none of these organisations have carried out any work specifically in this area at all. For example, Emma Ritch, Executive Director of Engender, has even said publicly that Engender did not comment on our CRIA in regard to the LGBT Youth Scotland school guidance because it was not ‘tightly related’ to the work they do as an organisation.

The lack of proper openness/diversity/inclusion/transparency/scrutiny has meant that the government has essentially engaged in a closed door policy process regarding the school guidance. This is clearly not a process where the government has in any way attempted to do its best to engage properly with stakeholder groups, or to give due consideration to policy, or to best ensure the rights of different groups are protected and that no one group or viewpoint is being upheld to the detriment or exclusion of other groups and viewpoints. This policy process is not demonstrating the commitment you made in your statement, but is instead a demonstration of policy capture and the exclusion of grassroots, working-class, gender critical women; women who have actually carried out relevant work, and work the government should be engaging with. And in fact the government should be proactively seeking to engage with us. This is why the OGP exists in the first place; here is the OGP’s declaration: “We value public participation of all people, equally and without discrimination, in decision making and policy formulation. Public engagement, including the full participation of women, increases the effectiveness of governments, which benefit from people’s knowledge, ideas and ability to provide oversight”. The OGP reminds us to “remember that one woman does not represent all women, so consider including a diverse group of women” and also that public participation should “(seek out and facilitate) the involvement of those potentially affected by or interested in a decision…(and should seek) input from participants in designing how they participate…(and that) provides participants with the information they need to participate in a meaningful way”.

We believe all of the above makes it clear that women should be able to fully participate in decision making and policy making, and that this participation must happen on the principle that stakeholder groups should represent a diversity of views (which includes gender critical women in respect to sex and gender policies, and also working class people wherever possible) and that the government should proactively seek engagement with groups that are not funded lobby groups and/or government funded organisations, and that the government should also proactively engage with stakeholders who believe they will face some form of detriment due to policies/proposals/guidance, including them at every stage of external stakeholder engagement in the policy making process (and this is all at the very least).

When we asked the Head of the SWU why we were not included, she said she just did not think of asking us, despite being aware of our work and engaging with it, and she said she did not agree that only consulting government funded organisations – which also do not represent the gender critical viewpoint, and which do not represent the viewpoint that the LGBT Youth Scotland guidance was detrimental to girls, and which do not represent working class people in any direct way, and which do not in any way constitute public consultation, and which have not carried out work in this specific area – was a failure to include the relevant diversity of views and input. This indicates a pervasive misunderstanding regarding what the government’s duties and principles actually are in respect to policy making, as well as pervasive policy capture. And this also means that the person who took on the remit of producing the Scottish Government’s school guidance has not upheld your commitments to the Scottish public on June 20th.

As such, we are writing to you to highlight that we consider this a failure in due process and in your stated commitments, and we would ask that you delay the guidance so that the government can ensure it carries out due process. Such a delay will not only help ensure the process itself can be trusted, but this will also work towards ensuring the guidance does not fail to adequately consider and uphold the rights of stakeholders.

We are also concerned that the Head of the SWU could not immediately tell us how stakeholders have been directly consulted regarding the guidance as part of the EQIA, a step required under the Public Sector Equality Duty. We have been very surprised that there has apparently not been open consultation with parents, and where appropriate children, in order to understand the impact of this guidance on children, including girls. We had asked the government for the details previously via email of when and how this consultation was taking place as part of the EQIA, but no details were forthcoming. The Head of the SWU was meant to respond to us via email on Thursday December 5th with the details, but this has not happened. We cannot delay writing to you any longer, but if we find out the EQIA has not been properly carried out, we will send a quick follow-up email to highlight this.

We will write to you regarding the more specific actions we are recommending in regard to open policy making in due course, as this is part of our organisation’s recommendations (published in our Female Only Provision Report) that we have yet to fully address with the government. However we would reiterate that policy capture must end now, and the government must start to immediately review how it is upholding its commitments to open, transparent and accountable policy making.

Best regards


Women and Girls in Scotland


Dear Ms Somerville,

I am writing to you from the grassroots campaign organisation, Women and Girls in Scotland, regarding the upcoming GRA consultation, specifically in regard to assessing the impact of the government’s proposals regarding Self-Identification of legal sex. We are aware that the government has engaged with our work, which is great, and therein we raised everything you need to know in order to understand what must be included in the government’s EQIA in order to assess the potential impact of your proposals on women and girls. However we are writing to you with a much more in-depth breakdown below in order to make sure the government has everything it needs in order to fully understand the very real issues with the government’s GRA proposals, and indeed to be clear regarding the actions our organisation, as a stakeholder group, is asking the government to take in regard to those issues. We have also asked some questions, which are clearly marked in bold.

The legal background:

In order to understand the potential impact of the Scottish Government’s GRA proposals on women and girls, the government must first be clear on how the single sex exceptions in the Equality Act 2010 are meant to work, and the human rights context in which they exist. In our engagement with other departments within the government over the last year, it has become clear that the single sex exceptions and the human rights of women and girls are poorly understood. We find that it is best to address how the Equality Act single sex exceptions are meant to work by highlighting what is meant by ‘case by case basis’ – an Equality Act term which is routinely misrepresented, often leading to failures in respect to the rights of women and girls, and which we address as follows:

‘Case by case basis’ refers to the *specific set of circumstances* in which the single sex exceptions in the Equality Act can be applied: Fundamentally, ‘case by case basis’ refers to the fact that policies of trans preclusion from any form of single sex provision have to be objectively justified (i.e. be ‘proportionate and legitimate’) *per provision*. For example, providers cannot simply decide to offer provision for women and/or girls on a female-only basis without any form of justification, but rather they have to assess, per provision, whether they can objectively justify doing so. And the Equality Act makes it clear that if a provider wishes to offer a provision for women or girls on a female-only basis, justifying this *depends on the needs of women and girls in respect to that provision*.

For instance, in our correspondence with the UK Government Equality Office regarding lawful female-only provision and the meaning of ‘case by case basis’, the government said ‘case by case basis’ means that whether female-only provision can be lawful “depends on the particular circumstances of the case” and raised the example used in the Equality Act explanatory notes of a counselling group for female survivors of sexual assault to demonstrate what is meant by this.

The example reads as follows:

“A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.”

The government said that this is lawful because the “particular circumstances of the case” were that “the service provider judged that inclusion would mean the women for whom the service was intended would not attend”. As such, on this basis – i.e. that women would self-exclude from a women’s provision if transwomen/male people were able to access this provision – making such a service female-only (which is, then, a blanket policy of precluding trans people who are not female) is objectively justified and thus lawful under the Equality Act.

To reiterate, whether or not a provision for women and/or girls can lawfully be offered on a female-only basis (a blanket policy) *depends on the needs of women and girls in relation to that provision*, and as such, *does not depend on the needs or particular circumstances of trans people*. This means providers should only consider the needs and rights of women and girls in determining whether a form of provision for women and girls should be offered on a female-only basis.

However, the question of what can be objectively justified and thus lawful does not end there. Where there are forms of female-only provision because women and girls need this, providers may still act unlawfully if they fail to provide alternatives for trans people, and whether or not this would be the case is determined based on the needs and rights of trans people as well as the circumstances of the provider.

For example, a Scottish provider that offers a refuge service for women where service users live together in one building (i.e. the service cannot be split in any way) can easily objectively justify running this service on a female-only basis, because it is clear that many women are only able to access these kinds of services if they are offered on a female-only basis, and as outlined above, the Equality Act recognises such needs as a legitimate basis on which to offer female-only provision. Additionally, this provider should be able to objectively justify *only* running a female-only service, because it is not possible to run such a refuge service on a split basis, and it would also be unreasonable to expect this provider to offer a separate service for trans people when it has no other services. The Equality Act is clear that solely offering a single-sex service is permitted where offering the service on a mixed-sex basis “would not be as effective and it is not reasonably practicable to provide separate services”. Furthermore, back in June, Rape Crisis Scotland confirmed to our group that “of the 5,072 survivors who accessed support at a centre last year, 212 of these were men or boys and 7 people were trans/non-binary”, which demonstrates that there is a low trans demand for these services while there is enormous demand from women and girls (and not just in terms of the raw numbers; put to scale for respective populations, these figures mean that last year women and girls in Scotland accessed these services at almost 14 x the rate of trans people, and almost 23 x the rate of men and boys), and the Equality Act addresses that differences in need/demand justifies different levels of provision. For instance in the explanatory notes, the example of “a domestic violence support unit (set up) by a local authority for women only (with) no men-only unit because of insufficient demand” is provided to demonstrate the kinds of circumstances in which single-sex services are permitted. (The explanatory notes also state that “in each case such provision has to be justified”, again highlighting that ‘case by case basis’ refers to the specific set of circumstances per provision). Therefore it would quite clearly be unreasonable to argue that the existence of a female-only refuge in such circumstances would in any way be unfair or unlawful.

However, a women’s service that provides one-to-one counselling support for rape survivors, while again being able to easily objectively justify running this service on a female-only basis for the reasons already outlined, may be acting unlawfully if it *only offers this service on a female-only basis* because it may be possible for this service to also offer its services on a trans inclusive basis. For example the provider could split the service by having days/times of the week the service can be inclusive of transwomen, and other days where it is female-only. As such, there are circumstances where providers will be objectively justified in offering their service on a female-only basis, but not *solely* on a female-only basis.

This is a breakdown of how the Equality Act asserts the basis on which providers can offer female-only provision, and this breakdown makes it clear that the question of whether it can be objectively justified to offer a provision on a female-only basis is a *totally separate issue* in terms of what a provider has to consider, to whether it can be objectively justified to *only offer a provision on a female-only basis*.

It is clear that ‘case by case basis’ in respect to female-only provision simply means that in order to invoke the single sex exceptions, providers would have to *assess the specific circumstances per provision* in order to understand whether or not women and girls need that provision to be female-only (which is solely determined by the needs of women and girls), and if they do, the provider should then consider whether or not trans people should have separate provision.

It is also important to note that the single sex exceptions exist to uphold the human rights of women and girls, including our rights to privacy, dignity, safety and to be able to recover from trauma and to be able to fully and equally participate within society. These rights are relevant to all forms of provision where *specific separate provisions* may need to be offered for specific groups in order to uphold these human rights, and as such, upholding these human rights *never involves any particular group being forced to share provisions with another group/groups*.

It is also important to note that the needs of any particular group are solely determined by that group: So it’s the needs of women and girls that determine who they should not be forced to share with, just as it’s the needs of trans people that determine who they should not be forced to share with. Trans people’s human rights in respect to provision mean that where they need specific separate provisions to uphold those rights, they should have them.

So when providers consider how to uphold these human rights in respect to those with the protected characteristic of sex and those with the protected characteristic of gender reassignment, the question should be *where do women and girls/men and boys need their own provisions to uphold these rights, and where do trans people need their own provisions to uphold these rights*. It is also important to note here that the single sex exceptions are ‘exceptions’ to mixed sex provision, the word ‘exception’ does not indicate the exceptions should only be used in ‘exceptional circumstances’, and in fact use of the single sex exceptions can be the norm; as outlined above, so long as there are women and girls who need provisions to be female-only in order to uphold our human rights, failure to provide this is a failure to uphold the human rights of women and girls, and is discriminatory. Despite this, all of the above is routinely completely ignored in policy making.

As all of this makes clear, there is *no basis in law* for any assertion that a GRC should make any difference to where women and girls can have female-only provision, because the basis for applying the exceptions and offering female-only provision is solely determined by the needs of women and girls in respect to that provision. And where alternative provisions are required to uphold the human rights of trans people, this should happen regardless of their legal sex. So the GRC should make no difference to where the single sex exceptions can be applied or indeed to whether separate or no services are offered for trans people, and yet the Scottish Government has acknowledged the GRC impacts the single sex exceptions, as has the UK Government and the EHRC. And while it is true that the GRC in fact impacts the single sex exceptions even though it should not, which we will address below, it is a problem that the Scottish Government acknowledges this impact, and yet you stated publicly in June that the single sex exceptions will not be impacted by your GRA proposals, even though your proposals would open up the GRC to vastly increased numbers of people (more on which will be said below). These positions are not consistent.

Question: Before moving on, in your response can you please indicate if the government would disagree with any of our assertions above? It is important that the government will engage with our points substantively, so that we can understand the interpretation of the law and of human rights that the government is working from.

How the GRC impacts application of the single sex exceptions, and by extension women’s rights:

At this point we can say we have established that the Scottish Government understands the GRC impacts the application of the single sex exceptions in the Equality Act, but because the government cannot say how or why this is the case, and has failed to carry out any work to assess the impact, it is clear the government does not know the extent/potential extent of the prohibitive impact of the GRC on female-only provision in Scotland, or the impact/potential impact of this on women and girls. As such, the government should have been carrying out work to assess this impact/potential impact as part of its EQIA process for the GRA consultation, and this would necessarily include broad consultation with women.

There are in fact two pathways that allow the GRC to impact provisions for women and girls. The first is the pervasive failure of policy makers to ensure they understand how the Equality Act sex based protections work, and also why they exist in the first place, i.e. to uphold the human rights of women and girls. Indeed there is a widespread failure to understand and uphold the human rights of women and girls in policy making and service provision in Scotland and elsewhere. The second is that the interaction of both the Equality Act and the Gender Recognition Act mean that it will often be impossible to apply the single sex exceptions in practice in regard to trans people with GRCs.

In order to best illustrate the first point, we would raise the Ministry of Justice’s transgender prison policies as an example of how major providers are misinterpreting the Equality Act and the Gender Recognition Act. We understand the Ministry of Justice does not run the Scottish Prison Service, but the point in raising this as an example is because it helps to make clear how the GRC is generally being understood by major providers and government departments, as well as the impact on women of the how the GRC is understood in policy making, including at the highest levels. (We would also note that the Scottish Prison Service is reviewing its transgender policies after failing to carry out its Public Sector Equality Duty in regard to its EQIA).

The MoJ sets out in its transgender prison guidance that initially all trans prisoners will be “allocated (to prison estates) according to their legally recognised gender”, highlighting that trans prisoners with GRCs will be treated differently to trans prisoners without GRCs, on account of their legal sex, and from the outset. The MoJ’s guidance states throughout that while transwomen without GRCs can only move to a women’s prison after passing a stringent risk assessment that ‘balances’ considering the needs of the trans prisoner with the needs of women prisoners, that transwomen with GRCs should only be moved to the male estate if the risk of housing them with female prisoners ‘is particularly high’. Indeed the MoJ’s guidance stresses that transwomen with GRCs should not be treated “less favourably than a biological female person”, meaning the threshold for differential treatment cannot be based on the threat they pose as a male, unless, as the MoJ says, the risk they pose ‘is particularly high’.

Such policies represent a failure to uphold the human rights of women, and in fact are a violation of women’s human rights. When deciding whether transwomen should be able to be housed in the female estate, regardless of legal sex status, prisons should firstly consult with female prisoners (and more broadly) in order to gauge whether women require/would require their estate to remain female-only in order to uphold their human rights to privacy, dignity, safety and to recover from trauma. And so long as women require male-free space to uphold these rights (again, what women need is solely determined by women) this means that women should be held in a female-only estate. Additionally, if trans prisoners express that their needs in relation to these human rights mean they require alternatives to being housed with their natal sex, then appropriate alternatives should be provided, they should not be forced to share with their natal sex. This would be acting in accordance with human rights in respect to provision. Trans people do not have a human right to be treated as the sex they identify as at all times, they only have the human right to specific provisions as a class of people wherever sex segregation is necessary, and again, where sex segregation is necessary for women is solely determined by the needs of women. Housing trans people separately from their natal sex in appropriate accommodation is all that is required to uphold their human rights in prison, and yet women’s human rights are being violated because the MoJ obviously does not understand this.

These failures have, predictably, led to women being physically and sexually assaulted by transwomen in prison, as well as being subject to other distressing behaviours and general distress, leading to trauma and to major setbacks including drug relapses as a result (our organisation has documented much of the impact of such policies in our work). Transwomen who have been aggressive and violent, including sexually violent, were previously risk assessed, which also helps to highlight how risk assessments do not, and cannot, prevent harm. Although this should be clear anyway because traumatised women who need female only space where they are vulnerable need it solely on account of needing male-free space, the individual circumstances of transwomen are irrelevant. These examples also help to highlight how profoundly inhumane a violation of rights it is to only move transwomen with GRCs out of the female estate if they pose a ‘particularly high’ risk. And these outcomes for women prisoners would have been prevented if women’s rights were upheld (one such victim of sexual assault by a transwoman in prison is now taking her case to court in England, and the MoJ’s policies will soon be subject to judicial review).

And by way of demonstrating the second set of circumstances that lead to the GRC impacting provisions for women and girls, we can point to our NHS Case Study in our Discussion Paper on Gender Self Identification, published in May of this year, where we highlighted how NHS providers are unable to have policies in place that would prevent transwomen from being allocated the care of a patient who had previously agreed & consented to only be seen by a female HCP. These providers cited the interaction of the Equality Act and the Gender Recognition Act as preventing them from being able to guarantee that agreed female-only healthcare will in fact be delivered by a natal female HCP. It is also important to note that they concordantly do not have any policy to pre-warn patients who are expecting a female HCP that they will be seen by an HCP who is trans/a natal male.

Providers can prevent transwomen who are legally male from providing female-only healthcare by simply requiring birth certificates from all staff, so that when care is allocated it is clear on their systems who is male and who is female. However, because staff with GRCs can change the sex marker on their birth certificate, transwomen with GRCs would be listed as female wherever providers require proof of sex in order to be able to run single sex services, and providers cannot ask if a person has a GRC in order to determine their sex, because this would constitute direct discrimination. Even if a trans person with a GRC tells their employer/a provider they are trans, this information cannot be disclosed to others, nor can it be held on any kind of open system, as it would constitute a criminal act of disclosure due to the Gender Recognition Act. As a result, even though organisations like Rape Crisis Scotland have publicly stated they would consider female-only healthcare a requirement that should absolutely be covered by the single sex exceptions in the Equality Act (a statement they made in response to our NHS FOIs and the subsequent media coverage), the two largest NHS providers in Scotland have made it clear that the law prevents them from doing this. And, crucially, *it would be the same in any service that cannot employ the Genuine Occupational Requirement (and even then, the GOR only relates to employees)*.

In in our Female Only Provision Report, published in June of this year, we included quotes from our public survey of 2000 women (carried out in September 2018) where many women stated how the prospect of facing a male HCP due to these issues, and without warning, was too distressing and meant they were avoiding accessing potentially life-saving healthcare, including smear tests. These women all stated previous trauma as a factor in why they were finding this particularly distressing, and women raised this in their responses despite the fact we did not even ask a question on accessing healthcare in our survey. Some women also highlighted that if faced with a natal male HCP when they had only consented to being seen by a female HCP, they may not be able to address this and may end up going through with intimate care they don’t consent to, which itself would represent a violation and a source of trauma. Particularly for women who have been sexually assaulted (and most especially for women being treated due to sexual assault at the time). Also, not all patients would physically be able to challenge this, as many in hospital for example would be too weak to do so, which again could lead to serious health and welfare impacts for the patient.

This is a significant patient welfare and consent issue, and it should not be happening. The only reason it is, is because the Gender Recognition Act effectively nullifies the single sex exceptions in the Equality Act, as outlined above, and this must be addressed, not least because this is the same situation most (and perhaps all) services will find themselves in. Yet the Scottish Government’s proposals to reform the GRA have not addressed this at all (although we of course hope that this has now changed).

Question: Can we please ask if you can confirm whether the government would challenge any of our assertions above?

How the government should address the prohibitive impact of the GRC in its GRA proposals:

In any proposals to reform the GRA, the Scottish Government should address how the GRC is misunderstood in practice and commit to providing guidance specifically with regard to the GRC (in addition the Equality Act more generally) and how this should not prevent or in any way impact female-only provision where women and girls need this, as per the Equality Act 2010. The government should also address how the GRA needs to be amended in order to ensure there are no circumstances in which the GRC can prevent the single sex exceptions from being used where it would be objectively justified to use them. Service providers cannot be in the position where they cannot lawfully identify trans members of staff and service users/suchlike, because they have to be able to identify trans people in order to be able to apply the exceptions, otherwise they cannot be applied and it should be possible to apply the exceptions wherever and whenever it would be objectively justified to do so – that is how the Equality Act is written and this cannot be ignored. If the Scottish Government cannot find a way to do this, it must not move forward with any proposals that would further nullify equality protections for women and girls. Trans organisations have been clear they view Self-Identification of legal sex as purely a measure to simplify an administrative process, and simplifying administrative processes could never justify further nullifying the legal protections of women and girls, and infringing on our human rights.

How the government should address the prohibitive impact of the GRC in its EQIA:

Due to the fact the GRC can nullify female protections in respect to most, or perhaps all forms of women’s provision, the government should be assessing the impact on women of any loss of female-only provision across all forms of provision that are offered on a single sex basis. This would necessarily include broad consultation with women in regard to our need for female-only provision, as is made clear in the Public Sector Equality Duty. Indeed any EQIA that does not include broad and open consultation with women as stakeholders in regard to the government’s GRA proposals, would constitute a failure to uphold the government’s duties under the Equality Act, and would profoundly undermine the GRA consultation. Only a full EQIA, including open engagement with stakeholders, will mean the Scottish Government is providing consultees and indeed the public at large with the information they need in order to be able to understand the potential for these proposals to impact stakeholders, and indeed ensure procedural fairness towards all stakeholders.

Within the government’s EQIA, particular attention should be given to the impact/potential impact on vulnerable, minority and working class women of the loss of female-only provision. The findings of our survey and surrounding work, including consulting with women who provide frontline women’s services, were consistent with the previous surveys and polls of women and women’s services, carried out by women’s organisations such as the Women’s Resource Centre and the Women’s National Commission, which found that traumatised women, women from particular religious and cultural backgrounds, and women from the most disadvantaged backgrounds, have the most to lose from any loss of female-only provision. In other words, women who are among the most vulnerable and marginalised, and the most in need of social inclusion and access to support, are the most likely to be adversely and most severely impacted by any loss of male-free provision. As such, the government should be making particular efforts to engage with women from these groups on the need for female-only provision, and should ensure that it does not progress with any policies which could make it harder for women to have access to the provisions we need.

We ask that the government rejects any notion that complaints to service providers can provide an accurate reflection of the impact/potential impact of changes to female-only provision that mean they are no longer single sex. The measure of the impact of policies which change female-only spaces to mixed sex cannot be based on how many incidents have occurred or complaints have been made, as this would not provide a measure of those who are self-excluding/those who would self-exclude, and nor would this provide a measure of the distress and re-traumatisation women face/would face if natal males were able to access those provisions. The government should always rely on properly conducted impact assessments.  

Questions: If the government has not assessed how its proposals potentially impact the availability of female-only provision in Scotland and what the impact of this would be on women and girls – despite stating to our organisation directly that it understands the GRC does impact application of the single sex exceptions and that it does not know how prohibitive this impact is, and despite the fact that this should not be the case as per the Equality Act, and despite the evidence we have provided of how and why the GRC nullifies equality protections within the Equality Act and is preventing upholding the human rights of women and girls – can we ask that the government confirms the following with us:

1) Is the government taking the position that it does not recognise any prohibitive impact of the GRC on the single sex exceptions? (If this the case can you please address where you believe our assertions are wrong and also what the basis is for asserting that the GRC impacts application of the exceptions, but this impact is not prohibitive).

2)Is the government taking the position that it does not recognise the prohibitive impact of the GRC as a women’s rights and equality issue? (If this is the case can you please explain exactly why, including where you believe our assertions are wrong).

3)Isthe government taking the position that it does recognise the prohibitive impact of the GRC on the single sex exceptions, however it does not believe this impact will be exacerbated or extended by its proposals because it does not believe its proposals will increase the numbers of those who attain a GRC ? (if this is the case, please can you state on what basis the government is making this assertion).

Ensuring the integrity of the consultation process:

In addition to the steps we have recommended in regard to the government’s GRA proposals and the content of the consultation and the EQIA, we would like to highlight that the government has indicated it intends to move forward with its GRA proposals in regard to Self-Identification of legal sex regardless of the outcome of the consultation process, which is in direct contravention of the government’s own guidance regarding decision making and the law, ‘Right First Time’. This guidance states “consultation must be undertaken when proposals are at a formative stage” and that “consultees’ responses must be conscientiously taken into account when the ultimate decision is taken”. This is because policy making should be evidence led and subject to due to process.

Question: Can you please confirm with us that the government will uphold these principles, and that the government is therefore not committing to legislating any of its proposals before it has properly assessed and consulted on those proposals, and that the final decision will take into account the results of the consultation and the needs expressed therein of stakeholder groups as well as their rights in regard to those needs? In other words, can you confirm the outcome is not predetermined and instead will be determined by the evidence and due process. 

The fact the government appears to have predetermined the outcome of this process before it has even taken place is already undermining public confidence in this process, particularly among women. It is important the government makes it clear that the outcome has not been predetermined and due process will be carried out, and this must be stated clearly when the consultation is published.

We note that the government has stated the outcome of this process has been predetermined because ‘Self Identification is international best practice’, and while as already outlined there are no circumstances in which the outcome of such policy processes should be predetermined, it is also important to note that there is no way the government can ascertain what best practice in fact is, until it has fully assessed the impact of Self Identification of legal sex (or any policy) in the context of our domestic laws and the needs and rights of all stakeholders are properly understood and addressed. The impact of Self-Identification of legal sex on women and girls has never been assessed by any government that has implemented it, which is an indictment in itself and another reason why women are losing faith in policy makers, and demonstrates that a hallmark of Self-Identification policies is that they are not the result of due process or rights based approaches.

Question: Can you please confirm with us whether the government agrees that it cannot understand what best practice is/the best course of action is in any area of policy making, until the relevant assessments and consultations have been properly completed and appropriately taken into account?

Many thanks for your time. Please do not hesitate to get in touch with us at any time if you would like to ask us anything at all. We look forward to hearing from you in due course.

Very best regards,


Director, Women and Girls in Scotland