Women and Girls in Scotland have tweeted the following:
twitter.com/WG_Scotland/status/1201942673759842304?s=19
GROUP UPDATE re Scottish Govt school guidance for trans pupils: Below is a very long thread detailing our meeting with the Support & Wellbeing Unit Head today, in order to provide an update re the govt’s school guidance. We are mostly very disappointed at what we heard from the Unit Head today, & have major concerns.
For some background: in January our group produced a Children's Rights Impact Assessment re the LGBT Youth Scotland guidance for trans pupils that revealed the guidance breached the UNCRC/children’s human rights (& it was in response to our CRIA that the Children’s Commissioner recommended the LGBT YS guidance not be further implemented until it had been properly assessed by the govt) & in August we were also invited to provide feedback to the EHRC re its own guidance for trans pupils (you can find our CRIA & EHRC response on our website).
We are the only women's org in Scotland to have carried out this joint work. The Scottish Govt has read our work, & was aware of our CRIA before a working group was set up by the Support and Wellbeing Unit to work on the school guidance - a working group we were not told about until today, despite the govt being aware of our work, & despite being in contact with us months ago to say they would value our input & would involve us in due course.
We asked today why our org was not included in this working group, considering we are the single women’s org in Scotland that has carried out work specifically in this area, & they simply could not answer this question. Their only response was that they made sure to include ‘a diversity of views’. When we asked them how they did this re women’s stakeholder groups, they told us via engaging with Engender, Scottish Women’s Aid, & Rape Crisis Scotland.
Obviously we were stunned. These orgs are all govt funded, & have not carried out work in this specific area, nor do they disagree with each other or the LGBT orgs involved re the issues of sex & gender, or policies relating to sex & gender, so they do not represent a diversity of views, & nor do they represent direct input from working class people, & nor do they include any form of grassroots group.
So despite the fact it has been made clear to the govt over the last year that it must ensure to engage with a diversity of groups & views, including from grassroots orgs/unfunded orgs not paid to lobby, in order to produce good policy (including from the CTEEA committee in its census report) & despite the fact working class women are largely missing from policy making & the govt should be doing all it can to involve us, & despite the fact the govt should be engaging first & foremost with groups producing work relative to their working groups (i.e. engagement should be based on merit & evidence, not deference) & despite the fact the Scottish Govt has signed up to the Open Govt Partnership & should be proactively engaging outwith regular lobbying groups as fully as possible within policy making, policy capture is still happening & women’s organisations are being excluded from processes we should be part of.
Again, the govt could not provide us with a reason as to why we were excluded from this process, & could not defend doing so. We consider this a failure in due process to adequately consult on govt proposals, & we will be complaining re this to John Swinney in our letter to him in due course, & it will also be addressed in our engagement with the govt re our report recommendations on policy making.
And we will be highlighting this as well within the work of the Open Govt Network, as an e.g. of how the govt is failing in its Open Govt commitments & is further evidence that we need to set up firm principles for policy teams.
To make matters worse, the govt considers our conversation today the start & end of our involvement with the guidance. It will not be sending its EQIA or CRIA to stakeholder groups for feedback, despite this step helping to ensure these assessments reflect the needs & rights of stakeholders & despite the already failing to uphold children’s human rights in schools. Nor will it be sending its guidance in draft form for feedback either. In other words, this guidance is not based on any form of broad or open consultation, & nor will it be subject to any form of external checking process.
The Scottish Govt is trying to produce in several months what the EHRC has not managed to do in two years & seems to be avoiding due process where it can.
The govt also refused to confirm its understanding of the law or of children’s rights with us, so for example it would not answer whether it understood that the term ‘case by case basis’ refers to the circumstances per provision in the Equality Act (& the EHRC technical school guidance) & when we read through the human rights of girls to female-only provision, it was indicated to us that the guidance will not directly correlate with this reading of girls’ human rights, but there was no clarity on how this is the case.
They did at least recognise that in relation to girls who have suffered trauma, that schools cannot expect disclosures of trauma & should also protect pupils from feeling they have to make such disclosures and indeed from having to in any way revisit trauma. And thus that schools cannot rely on consultation with female pupils to gauge the totality of the needs of female pupils & must understand there are needs they will not be able to gauge via consultation that they nonetheless have to always address.
However we did not get a clear response to our point that as such, schools can only respond to the needs and rights of girls recovering from trauma by always assuming they are part of the group of children being addressed & this means that schools have to provide female-only facilities, not only to meet the needs of girls with trauma, but also to uphold their human rights to privacy & to be able to recover from trauma. We made it clear that failing to provide all facilities for girls on a female-only basis (which does not prevent facilities also being offered on a third basis for trans children) means that schools would be failing to uphold the rights of girls & knowingly placing girls at a detriment, & therefore this would be discriminatory.
Although we did get them to acknowledge that the needs of trans children do not erase the needs & rights of girls, & that the notion of ‘balance’ which they mention must not mean any groups human rights are infringed to meet another groups preferences. We also highlighted the issue with the term ‘inclusion’ re changing single sex provisions to mixed sex, & how this framing can create a hostile environment for girls due to framing their assertion of their needs, boundaries and rights as ‘exclusionary’, & how creating a hostile environment for girls can itself constitute sex based harassment on the part of a school.
We went through all the points we raised re inclusion & gender stereotypes in our EHRC response, published on our website, including that school guidance must stand up to the test that it does not ever conflate sex & gender, & that the language used should encourage schools to become truly inclusive environments where all pupils can develop and thrive without gendered expectations or stereotypes limiting how they are understood and indeed the possibilities open to them.
We were unable to get any real indication of what the approach of this guidance will be in regard to those points.
Lastly, we had asked the govt to produce a full Equality and Human Rights Guidance for schools for all protected classes of children, but it refused saying there is already enough guidance out there for all other groups except trans identifying children. We have asked them to send this on to us, and we will review this & the published guidance, & at that point we will write to John Swinney re our concerns, and where we feel guidance must be changed/additional guidance must be published.
And as a very last resort we will consider legal action if the govt does not properly consider the rights of girls despite being given every opportunity to do so. The guidance may yet actually end up upholding the rights of girls, but based on our engagement today, we highly doubt it.