'More consideration of gender recognition reform needed', say Equalities and Human Rights Commission

Scottish ministers should undertake “more detailed consideration” around proposed changes to gender recognition reform before advancing legislation through Holyrood, the Equalities and Human Rights Commission (EHRC) has said.

In a letter to social justice secretary Shona Robison, the EHRC said the “established legal concept of sex” provided the “correct balanced legal framework that protects everyone”.

LGBT charities and several MSPs criticised the response, stating reform to gender recognition was among the most consulted-on policies of all time and attacked what they labelled as an intervention by “UK Government appointees”.

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Stonewall also called on the UN’s human rights commissioner to intervene, claiming the letter breached key principles which set out an international standard for human rights organisations.

The Scottish Government has been advised to undertake more detailed consideration of gender recognition reform legislation.

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The Gender Recognition Reform Bill was first consulted on in 2017/18, and again in 2019/20, amid a polarisation of the debate online and bitter internal feuds in the SNP about the policy.

Progressing the legislation is also a central commitment of the Scottish Green/SNP co-operation agreement.

Baroness Kishwer Falkner, who was appointed chair of the EHRC by the then-equalities minister Liz Truss, raised “concerns” around data collection, the impact on sport and the criminal justice system.

The letter calls on the Scottish Government to undertake “more detailed consideration” of the legislation, while calling for “urgent improvements” to gender identity services across the UK.

It states: “The potential consequences include those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia.

“We otherwise consider that the established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people and the ability for them to obtain legal recognition of their gender, collectively provide the correct balanced legal framework that protects everyone.

"This includes protecting trans people from discrimination and harassment, and safeguarding their human rights.”

LGBT charities criticised the stance, with Vic Valentine, manager of the Scottish Trans charity, saying the EHRC backed reform during the Government’s consultations.

They said: “Reform of gender recognition is one of the most consulted-on policies of all time, with two comprehensive public consultations by the Scottish Government since 2017. The draft Bill was fully consulted on a year ago and everyone had their say. The EHRC itself responded to both public consultations, supporting reform.

“There will, of course, be much more detailed consideration of the Bill as it goes through the Scottish Parliament.”

Tim Hopkins, director of the LGBT charity Equality Network, criticised the public body’s alleged politicisation.

He said: “The EHRC is not independent of government, but has its board directly appointed by Liz Truss and the UK Government. We assume that their appointees are responsible for this letter and for failing to stand up for equality for trans people.

"We do not need UK Government appointees telling us in Scotland how to legislate in devolved areas, and we look forward to the Scottish Government proceeding with this legislation soon, as has been promised many times.”

A spokesperson for Stonewall said the charity was “deeply troubled” by the EHRC’s letter, and called on the UN to intervene, claimed the EHRC had breached key principles for how human rights institutions operate.

They said: “Their approach appears to focus on pleasing a noisy minority of anti-trans activists, rather than promoting human rights for all LGBTQ+ people.

"The EHRC has a statutory duty to enforce the Equality Act 2010 and protect equality and human rights across all nine protected characteristics, including sexual orientation and gender reassignment. These statements do the opposite, by actively standing in the way of improving the rights of trans people.

“This comes as the UK is named as a country of concern in a resolution by the Council of Europe, in which the General Rapporteur on LGBT+ rights raised concerns about the growth in ‘highly prejudicial anti-gender, gender-critical and anti-trans narratives’, which reduce the fight for the equality of LGBTI people to what these movements deliberately mischaracterise as ‘gender ideology’ or ‘LGBTI ideology’.

“Our communities need and deserve a stronger human rights institution. Stonewall calls on the UN Office of the High Commissioner for Human Rights and the Global Alliance of National Human Rights Institutions to urgently review EHRC and ensure that trans people’s rights are effectively supported by this institution.”

Scottish Green MSP Maggie Chapman labelled the report “outrageous” and “deeply concerning”.

She said: “Two consultations have been run. Many people responded to these, including ‘gender critical’ people.

"Reform is about safeguarding trans people’s rights and well-being.”

Other Green MSPs, including government minister Patrick Harvie, also criticised the letter.

Mr Harvie pointed to a report by the Parliamentary Assembly of the Council of Europe, which listed the UK alongside Russia, Hungary, Turkey and Poland as hotbeds of “extensive and often virulent attacks on the rights of LGBTI people”.

Analysis of the most recent Scottish Government consultation on the legislation, published in September last year, said there was a small majority of organisations who “broadly supported” the proposed changes to gender recognition.

The consultation received more than 17,000 responses, including 215 submitted by organisations.

A total of 55 per cent of responses came from those resident in Scotland, 32 per cent resident in the rest of the UK, and 14 per cent from the rest of the world.

It is believed the legislation would be passed easily in the Scottish Parliament once it is tabled by the Scottish Government, with the SNP, Scottish Greens and Scottish Labour all broadly supportive, providing an easy majority for the Bill.

The Scottish Government has been contacted for comment.

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