On November 30th, seven former Labour MSPs wrote to the UN special rapporteur for violence against women and girls, Reem Alsalem, in response to the concerns she expressed regarding the Gender Recognition Reform (Scotland) Bill –

Dear Ms Alsalem,

We write to you as former Labour members of the Scottish Parliament. In our final years as parliamentarians, we became concerned about the erosion of women’s sex-based rights, and we write to you now regarding our concerns about the Gender Recognition Reform Bill.

It’s clear that you have already received evidence from elsewhere about the potential impact of the draft Bill on women and girls, so we do not intend to repeat that here. However, we are concerned about some of the lines of defence being used by the Scottish Government

In last night’s interview with the BBC, the minister with responsibility for the Bill, Shona Robison, made a number of claims about ‘safeguards’ she believes the Bill offers.

Claim:

“When you look at the evidence of the 10 countries plus that have reformed their gender recognition process, what is certainly there’s no evidence of the concerns being expressed coming to fruition” and “There’s no evidence from any of the countries that have gone down this route that that has been the case”

This simply is not true. It is our understanding that no jurisdiction that has introduced a self-declaration of legal gender recognition has undertaken any form of evaluation of the impact of the legal reform on women and girls. We are aware of emerging issues in some countries, which have been documented by policy analysts MurrayBlackburnMackenzie. We are also aware that, following reform in Ireland, there are now three male sex offenders in Limerick women’s prison. The chair of the criminal law committee in the Irish Law Society said in late 2019 that they had not anticipated that this might be an outcome of reform when legislation was passed in 2015.

Claim:

“The Registrar General can apply to the sheriff to revoke gender recognition certificate if, for example, they believe it to be fraudulent, and indeed the registrar general can themselves stop a GRC being issued.”

The Scottish Government has not stated what evidence would be required to establish whether an application for a GRC would be deemed ‘fraudulent’. Nor have they articulated what it means to ‘live in the acquired gender’ other than to say that it might involve changing someone’s name on other forms of identification or utility bills. This, therefore, is not a meaningful safeguard.

Claim:

“We’ve also put in place protections under the sex offenders protection notifications that requires for example, anyone on a sex offender register has to go to a police station, if they would seek to use this process.”

The minister here is stating – as she did in parliament earlier this month – that the onus would be on sex offenders to voluntarily inform the police that they are applying for a GRC. Sex offenders are notoriously manipulative and the idea that they would voluntarily inform the police of their intention to change legal sex woefully naïve. Again, this is not a meaningful safeguard.

Claim:

“There have been significant amendments at stage two taking on some of the concerns that have been expressed.”

This simply is not true. Only a handful of the 155 amendments which were tabled at stage 2 were voted onto the face of the Bill, and those that were will have minimal impact on the effects of the legislation (see above).

Claim:

“the protections that are under the Equality Act for those services like rape counselling services, for example, can already exclude trans women even with a gender recognition certificate”

This is true. However, this is not happening on the ground and that is in part due to confusion about the law as it stands and in part due to misinformation spread by some groups claiming to advocate on behalf of trans people. You will be aware that there are live court cases considering the interaction between the rights of a GRC holder and the operation of the Equality Act 2010. We are concerned that legislators are being asked to pass a Bill against this backdrop of uncertainty.

Claim:

“It was put on at stage two, that this bill will not change any of those Equality Act protections.”

The minister is referring to an amendment which was tabled at stage 2 by a Labour MSP and was voted onto the face of the Bill. However, this amendment does not align with the amendment suggested by Great Britain’s equality regulator, the Equality and Human Rights Commission (EHRC) in its Stage 2 briefing to MSPs. More recently, an English barrister who is currently litigating a case in this area, wrote that the amendment was ‘vacuous’ and will not achieve the desired effect. In fact, another amendment – tabled by another Labour MSP at Stage 2 – came closer to the amendment suggested by the EHRC but it was withdrawn.

Claim:

“I’ve met with people who hold very differing views, both for and against.”

It is very clear to us that the Scottish Government, in developing its proposals over the past half decade, has listened predominantly to groups advocating a self-declaration model of gender recognition. Grassroots women’s groups have struggled to be heard. The minister met with some of these groups in January, but only in response to being shamed into doing so by negative media coverage and at a point where the final draft of the Bill had already been signed off. The Government continues to repeat the line that it has held two consultations in 2017 and 2019 on the proposals, which elicited 15,000 and 17,000 responses respectively. However, receiving tens of thousands of submissions does not equate to engaging with and responding to well-founded concerns. The concerns that women have been expressing for half a decade have not been adequately addressed, so it is not a surprise to us that, so late in the day, these concerns have led to your very welcome intervention.

We would, of course, be very happy to meet with you to discuss this further, if you would find that helpful.

Yours sincerely,

Johann Lamont, member of the Scottish Parliament 1999-2021, Labour leader 2011-2014. Scottish Executive Minister 2004-2007.

Hugh Henry, member of the Scottish Parliament 1999-2016 and Scottish Executive Minister for Justice and Education 2001-2007.

Jenny Marra, member of the Scottish Parliament 2011-2021

Elaine Smith, member of the Scottish Parliament 1999-2021. Deputy Presiding Officer 2011-2016.

Marlyn Glen, member of the Scottish Parliament 2003-2011

Maureen McMillan, member of the Scottish Parliament 1999-2007

Elaine Thomson, member of the Scottish Parliament 1999-2003