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.
The Commission has effectively urged the government to hit the pause button on plans to change the law to allow a person to legally change sex without having to undergo any counselling or medical treatment. Instead, similar to the change in law in Ireland, applicants would have to make a solemn statutory declaration that they have been living in their acquired gender for three months – down from the two years previously required – and intend to do so permanently.
The Scottish government claims the current process, where applicants go to the UK Gender Recognition Panel, can be “traumatic and demeaning”.
However, women’s rights groups say the ease with which men can legally change gender has consequences for women’s only spaces, including women’s prisons and changing places.
The proposed legislation would allow people to declare their legal gender rather than requiring a diagnosis from a doctor that they are suffering from gender dysphoria.
Two important documents were released by the EHRC on Wednesday, which signalled what has been described by SNP politician Joanna Cherry as a “turning point” in the debate on sex and gender identity in Scotland and across the UK.
Following the release of the documents, the Equalities watchdog chief warned over the weekend of ‘genuine public concern’ that trans rights are conflicting with the rights of women. Baroness Faulkner, chair of the EHRC, said that over the last five years the debate over “sex versus gender” has “become more polarised”.
Speaking on BBC Radio 4’s Today programme on Saturday, Baroness Falkner of Margravine said the call for the halting of plans was in part due to the debate over trans rights shifting significantly since the 2017 consultation on the Scottish bill.
Meanwhile, Scottish First Minister Nicola Sturgeon has fired back at critics of her overhaul of gender recognition laws who warn that such changes could be harmful to women. She has dismissed the EHRC’s suggestion that legislative reform on the issue would threaten the rights of women.
The first document released by the European Human Rights Commission was a letter from the chair of the Equality and Human Rights Commission – the cross-bench former LibDem peer baroness, Kishwer Falkner – commenting on the Scottish Government’s plan to reform the Gender Recognition Act 2004 and to adopt a policy of self-identification. The second document was the ECHR response to the UK Government’s consultation on its plan to ban conversion therapy.
In its letter to social justice secretary Shona Robinson, the EHRC told the Scottish Government that the “established legal concept of sex” afforded the “correct balanced legal framework that protects everyone.” It highlighted concerns about the implications of changing the criteria for obtaining a gender recognition certificate and wrote of “the potential consequences for individuals and society of extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point.”
The EHRC added: “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 practises within the criminal justice system, inter alia.”
Responding to the UK Government consultation on conversion therapy, whilst the EHRC stated it was supportive of the measures to end harmful conversion therapy practices, it emphasised that the significant and broad-ranging consequences of the government proposals – for criminal and civil justice, families and religious organisations and clinicians and therapists – necessitate careful and detailed consideration.
The Gender Recognition Reform Bill was first consulted on in 2017/18, and again in 2019/20, in the midst of a polarisation of the debate online and embittered internal feuds in the Scottish National Party over the contentious policy.
Concern was also expressed by the EHRC regarding the lack of clear definitions of “conversion therapy” and “transgender”.
Referring to the government consultation document on banning conversion therapy, the EHRC pointed out that it, ‘contains no clear definition of what will amount to “conversion therapy” caught by its proposals, nor of the meaning of “transgender” – a term which has no clear legal meaning, is potentially wider than the concept of gender reassignment in current UK law, and is understood by different people in different ways.’
The EHRC also focused attention on the lack of evidence relating to gender conversion therapy and urged the UK Government to await the outcome of the Cass Review which is at present looking into gender identity services for children and young people.
The proposals for the new conversion therapy law in the UK include gender identity – along with sexual orientation. Critics of the proposals argue that ultimately, if the law came into effect, it would mean that any talking therapy offered to people presenting to medical professionals experiencing gender dysphoria would become illegal. Indeed, the EHRC pointed out in its report that gender identity is not the same as sexual orientation.
The human rights body wants the UK Government to address sexual orientation and being transgender on a separate basis, and not to go ahead with legislation to ban conversion therapy regarding the later until detailed evidence-based proposals are available and can be properly scrutinised. It also stressed the importance of any ban not preventing appropriate support for individuals with gender dysphoria.
Whilst those who have expressed concerns on such matters were pleased by the interventions from the EHRC, other individuals and organisations have hit back at the EHRC.
LGBT charities and several MSPs criticised the response, saying that reform to gender recognition was among the most consulted-on policies of all time.
Tim Hopkins, director of the LGBT charity Equality Network, criticised the public body’s alleged politicisation.
Hopkins 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.
However, speaking on Sunday, chair of the EHRC, Baroness Falkner defended the human rights body’s stance, and said there “is a genuine public concern” that trans rights and women’s rights clash. She said: “What has changed is quite significant, from the original consultation in 2017 to now, nearly five years, there has been a significant public debate around issues of sex versus gender.
“They have become more complex and more polarised. Public understanding of gender identity has broadened beyond the legal definition of gender reassignments. This engages conflicts of rights issues.
“There are perceptions that those defending the rights of trans people conflict with those defending the rights of women.” When questioned on whether she believes there is a conflict between trans rights and women’s rights, Baroness Falkner added: “There is a genuine public concern that they conflict.”
Defenders of the EHRC argue that the body is far from a ‘mouthpiece’ for the UK Government. Writing in The National newspaper, Joanna Cherry QC, a Scottish politician, member of the Scottish National Party and lawyer serving as a member of the Parliament for Edinburgh South West, said she was pleased by the interventions – as someone who had expressed ‘legitimate concerns’ about the policy. She also blasted criticism of the EHRC.
“The hyperbolic response of some individuals and organisations has been disappointing but, sadly, not surprising. It’s a shame that so many have sought to attack the EHRC as though it was a mouthpiece of the UK Government. It is not. Ironically, its attackers include bodies who are largely funded by the Scottish and UK governments and haven’t themselves always seemed as independent of government as one might expect,” she wrote.
She continued: “The EHRC is an independent statutory body with a responsibility to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote the human rights of people across England, Wales and Scotland. It was set up under the Equality Act 2010. Equalities are a largely reserved matter under the Scotland Act but human rights are not and a separate independent statutory body set up by the Scottish Commission for Human Rights Act 2006 shares responsibility for human rights in Scotland. Both organisations have been awarded “A” status as National Human Rights Institutions (NHRI) by the United Nations.
“The director of the Scottish Human Rights Commission is appointed by the Scottish Parliament after an open recruitment process. The director of EHRC is appointed by the UK Government’s Women and Equalities Minister after an open recruitment process and a pre-appointment hearing before Westminster’s Women and Equalities Select Committee and Joint Committee on Human Rights (JCHR).”
She added: “I know a little bit about this because as a member of JCHR I took part in Baroness Falkner’s pre-appointment hearing. One of the purposes of the hearing is to provide public evidence of the independence of mind of the candidate. Both committees found her to be a suitable candidate for the role of chair.”
Since Baroness Falkner’s appointment as chief of the EHRC in 2020, the organisation has found itself immersed in a number of debates regarding transgender rights. Last year, Baroness Falkner defended Professor Kathleen Stock, who left her job at Sussex University after being criticised by pro-trans activists for her views on gender and sex.
Baroness Falkner said the attacks on the academic were ‘disgraceful’ and called for tougher regulation to protect individuals from abuse because of their views. Last year, the EHCR also pulled out of a Stonewall diversity scheme in the midst of a row over transgender activism. It parted ways with the LGBT charity’s Diversity Champions programme in March 2021, saying it had concerns over the “value for money” offered by the scheme.
The BBC, Ofcom, Channel 4, Ofsted, the Ministry of Justice and the UK Department of Health are among other organisations to quit the scheme.