Opinion: We need more clarity on gender rights debate from Scottish Government

Almost all transgender prisoners who identify as men have been housed in cells for women. Picture: PA

The Scottish Government has published its latest consultation paper on reforming the Gender Recognition Act (GRA) 2004 just in time to put on the New Year reading pile, although at almost 200 pages, it may not be fully digested by the end of the holidays.

The Scottish Government is proposing to simplify the process for acquiring a gender recognition certificate (GRC), which allows a person to change the sex-marker on their birth certificate and has the broader legal effect of changing a person’s legal sex from man to woman (and vice versa). However the Government has yet to answer the central question, which is exactly how acquiring a GRC changes a person’s legal rights of access to single-sex services and occupations.

This question matters because the Government wishes to remove the need to provide evidence of a diagnosis of gender dysphoria and any other external scrutiny to obtain a GRC. Instead a person will simply need to make a statutory declaration that they intend to live in their new identity permanently and have already done so for three months (compared to two years at present). Making a false declaration will be a criminal offence: this will be the only safeguard against ill-motivated applications.

The Scottish Government also estimates that its proposals will increase the number of applications around ten-fold, making the GRC-holding population substantially larger and potentially more varied. Against this background, just how far a GRC provides greater legal rights of access to places and roles reserved to women, in particular, is a serious question for lawmakers and others.

This uncertainty relates principally to the wording of the Equality Act 2010, which is the main legislation governing single-sex provision – for example, whether a service or job can be limited to males or females only, and how access is affected by having a GRC. (The Gender Recognition Act itself is clearer, and sets out limitations on the effects of having a GRC, including sporting competition).

Some people claim that a GRC is irrelevant and that access to single-sex provision is already based on self-declared gender identity. This is certainly the case in practice across a range of public and private services, with trans-inclusive policies for places as a varied as changing rooms, youth hostel dormitories, hospital wards and prisons already ignoring whether or not a transgender person has a GRC. Others argue that these policies go beyond what the legislation says, and that only those with a GRC have legal rights of access. We still do not know what the Scottish Government thinks.

Whatever policies have been adopted in practice, what the law actually does matters because it places limits on what service providers can choose to do and not to do, both now and in the future. Prisons provide an important example here.

Scottish prison policy provides that a transgender prisoner should be housed in accommodation that is consistent with their self-defined gender identity, whether or not they have a GRC. This, however, is still subject to individual risk assessment. In practice, almost all transgender prisoners who identify as men have been housed in the female estate. Around half of those who identify as women are held in the female estate: the rest have remained in the male one. How far these decisions reflect risk assessment and how far prisoner choice is unclear.

By contrast, Ministry of Justice policy for England and Wales states that a prisoner with a GRC should be treated entirely in line with their acquired legal sex. This means that the discretion allowed for housing GRC-holders is much narrower, compared to non-GRC holding transgender prisoners. The policy reflects English case law. In 2009, in R (on the application of AB) v Secretary of State for Justice, the judge held that a prisoner with a GRC had to be transferred to the female estate, against prison service judgement and despite having been convicted of the attempted rape of a woman.

The consultation paper on GRA reform contains no discussion of prisons and so gives no clue as to whether, like the MoJ, the Scottish government believes that a GRC confers any specific legal rights which would reduce prison service discretion over accommodation decisions.

Also relevant are powers to limit single-sex provision strictly to those who are not transgender. The consultation paper confirms this is legally possible. However, it also acknowledges that there is confusion about when this is allowed, and that further UK-level statutory guidance has been recommended but not yet produced. Without being clear as to whether a transgender person needs a GRC to have legal rights of access to such provision in the first place, it is impossible to know whether the current uncertainty is relevant to assessing the potential impact of the proposals in the consultation.

If people are to be able to engage properly with its proposals, the Scottish Government needs to spell out what it believes the specific effect is of obtaining a GRC on legal rights of access to single-sex provision. With part of the consultation period already lost to Christmas, it would be useful to have this information by the time the decorations come down.

Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie are the MurrayBlackburnMackenzie Policy Analysis Collective.