Can I have your thoughts on my response to the Scottish GRA Consulation?

[unlimiteddilutingjuice]

Hi,
I've been trying to write a response to the Scottish GRA consultation. I wondered if women here would mind taking a look and letting me know your thoughts. In particular- I'm interested in whether I've understood equalities law correctly, if I'm missing something really important or if you think it could be fleshed out with examples.
Here it is:

GRA Consultation

I support the move for a new Gender Recognition Act. Relatively few transgender people currently take advantage of the right to obtain a gender recognition certificate under the Gender Recognition Act 2004. I understand that this is because transgender people find the process overly bureaucratic and invasive.

Clearly, the current law is not serving transgender people well because it is holding out the promise of rights while, in reality placing significant barriers to obtaining those rights.
I would therefore support a new Gender Recognition Act.

I would like, however, to raise the issue of how such an act might interact with the existing Equalities Act 2010. In particular, I am concerned about Part 1 of schedule 9 of the Equalities Act.

This part of the act allows exceptions to the principle of non-discrimination in the case of a genuine occupational requirement where the discrimination is proportionate to a legitimate aim. It allows for example; a women’s health project to advertise a post open only to women.

Currently Part 1(3)(a) of Schedule 9 does allow an employer, in certain circumstances to stipulate that the applicant should not be transgender. The explanatory note 789 gives an example of when this might be appropriate:

“Examples include: A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.”

I feel that this exception is entirely appropriate.

I would like to strongly suggest that, whatever the form of the new Gender Recognition Act, it leave the protections under Part 1 of schedule 9 of the Equalities Act intact. It must remain possible for a women’s organisation to discriminate against transgender women proportionate to a legitimate aim such as genuine occupational requirement.

The currant explanatory notes give the example of a rape crisis centre but I am certain there are many other circumstances where a cis-gendered woman would be essential to the post, particularly if working with women who are vulnerable or marginalised.

I would suggest that the new Gender Recognition Act be used as an opportunity to clarify and strengthen the occupational requirement exemption. I feel that greater legal clarity would be useful, as the Gender Recognition Act 2004 does not refer to this schedule of the Equalities Act 2010, leaving a lack of legal certainty which is detrimental to Transgendered people and Cis gendered women alike.

This is of particular importance given that the new Gender Recognition Act is likely to increase the number of people able to take advantage of protection as a transgender person. This is of course, to be welcomed, but must not come at the detriment of other protected groups.

I would also like the Scottish Government to consider the possibility of an exemption, operating similarly to Part 1 of schedule 9 of the Equalities Act, but related to the provision of services and entry to sex segregated spaces. Spaces such as women’s changing rooms, female hospital wards, women’s’ prisons, and women’s refuge’s spring to mind as places where particular sensitivities apply.

I feel that where a legitimate aim may be pursued by offering a sex segregated service to Cis Gendered women, it should be open to service providers to demonstrate that any discrimination is proportionate to those aims.

I would also like the Scottish Government to undertake a full Equalities Impact Assessment of any changes to the current Gender Recognition Act in terms of the impact on other protected characteristics and particularly on Cis Gendered Women.

Great response. I am also concerned about the protections female workers will have to carry out their job - will it be possible, for example, for a female airport security worker to refuse to body search a transwoman? What would happen if there was a standoff (transwoman refusing to be searched by a man, no women willing to search her?)

So an employer could refuse to hire a transwoman for a job that involved searching female bodies (I hope) but would the protection work both ways?

Might be worth adding something about religious sensitivities along with vulnerable and marginalised women?

Thanks Biological Reality

BrandNewHouse Thats interesting. Do you have a link?

unlimiteddilutingjuice thank you for a reasoned and properly thought out response to the issue sorely lacking. There have always been exemptions to exclude transgender people where it is proportionate and necessary, and likely such cases would increase under self id. Some of the threads here would have you think transgender is just an ideology or an attack on womens rights.

I personally disagree with your first two paragraphs. Few trans people bother with a GRC because it's pretty much obsolete now we have equal marriage and rapidly equalising pension age. All ID except birth certificates can be changed without a GRC and trans people are protected under the equality act whether they have a GRC or not.

I don't believe the process is overly intrusive or bureaucratic. Legally changing sex is something that should not be done lightly and the requirements appear to be a walk in the park compared to, for example, claiming disability benefits or applying for a family visa.

There are very few situations where a GRC makes a practical difference. One notable exception is prisons where current guidelines state that a transwoman with a GRC MUST be moved to the female estate but that MoJ can use discretion for those without a certificate.

The way I see it, a change to self-ID would provide very little gain for genuine trans people but would massively increase the risk of harm to women in prisons.

I like that you have linked to the EA. It's notable that there are religious exceptions built into the GRA but all the sex based exceptions are in the EA. It would be extreme negligence for the consultation to fail to take account of how these two pieces of legislation interact.

There are already exceptions in the EA for the provision of services and single sex spaces. They're hardly ever used though because people don't know they're there and they fear litigation or other damaging action from transactivists if they try to use them. Fair Play for Women have produced an excellent guide to the exceptions here.

For further background, they have also produced:

Transgender rights: How did we get here? Part 1 Equality Law
Transgender rights: How did we get here? Part 2: Changing legal sex status
The Gender Recognition Act 2004 : What does it mean for women?

mummybear701 - There have always been exemptions to exclude transgender people where it is proportionate and necessary, and likely such cases would increase under self id.

What on earth leads you to that conclusion?

Pencilsinspace Thanks for the links. I have already read the last 3. I based my response pretty substatively on Transgender Rights: How did we get here. Part One. It was a Mumsnetter who pointed me towards them!

I'm going to read the link to single sex spaces now. Very helpful. Thank you