Scottish GRA draft legislation

[ItsAllGoingToBeFine]

According to Shirley Anne Somerville (MSP) on twitter twitter.com/WG_Scotland/status/1206322648206233600?s=19 the draft GRA bill will be out next week.

Women and Girls in Scotland have done some tweeting about the form the consultation is likely to take and they are hoping to release some guidance next year.

Definitely one to keep an eye on, and submit responses too. Even though this is Scottish legislation you can be sure that Westminster will be watching closely.

Ha! Nice way to kick off Christmas.

The suggestion to submit the response towards the end of the consultation period because it gives you more time to include any recent developments is a good one.

I'm sure it's just a coincidence that it was not released before the election.

I'm sure it's just a coincidence that it was not released before the election.

Absolutely. Along with the manifesto promise to reform only appearing in the LGBT manifesto two days before the election (as opposed to the main publicised manifesto)

Is that right Itsallgoingtobefine? Sneaky. Just like the timing of this. What can we do about this? The consultation is likely to be a whitewash...

When the consultation comes out we need to answer it as well as we possibly can to make sure those responsible actually understand the issues and impact on women.

Definitely keep an eye on the WG Scotland Twitter a/c. Their guidance will be very valuable I think & from what I understand, it's worth holding off submitting responses til near the end of the consultation period. There'll be plenty of time to review & consider how to respond & the consultation responses are supposed to form part of the EqIA so will be an important part of the process.

Consultation is up:

www.gov.scot/news/gender-recognition-consultation-opens/

Oh FFS,

The EqIA - impact on women - none

" A number of respondents to the previous consultation raised concerns about the implications of legal gender recognition for women.

Concerns included:

• access to women’s safe spaces;
• risk of abuse;
• women’s sports;
• intimate medical care;
• the accuracy of statistical information in areas
such as crime recording or equality
monitoring;
• freedom of speech.

The Scottish Government is of the view that there is lack of evidence that including trans women in women-only services and spaces has negative impacts.

The 2010 Act has a number of specified exceptions to the general provisions on non-discrimination. Some of these exceptions are directly relevant when considering the position of women in relation to gender recognition. Organisations and service providers can, when appropriate, make use of the exceptions in the 2010 Act to exclude trans people. However, the exceptions have to be used in a
proportionate way, and to achieve a legitimate aim.

On sport, section 195 of the 2010 Act contains provision allowing, in certain specified circumstances, restrictions on trans people
participating in sport to be imposed if necessary to uphold fair competition or the safety of competitors.

On single sex services, the 2010 Act allows women-only services and allows services to exclude trans women in certain specified circumstances when it is proportionate and in pursuit of a legitimate aim.

Paragraph 28 of schedule 3 the 2010 Act sets out the exception which relates to trans persons, and provides:
(1) A person does not contravene section 29,
so far as relating to gender reassignment
discrimination, only because of anything done
in relation to a matter within sub-paragraph (2)
if the conduct in question is a proportionate
means of achieving a legitimate aim.
(2) The matters are—
(a) the provision of separate services for
persons of each sex;
(b) the provision of separate services
differently for persons of each sex;
(c) the provision of a service only to persons
of one sex.

This provision would, for example, allow the operator of a domestic abuse refuge designed for women only to exclude a trans woman from the service if the operator judges that this is a proportionate means of achieving a legitimate aim. This is likely to involve carrying out a risk assessment to balance the needs
of all parties: the trans person; other users of the service and staff.

On data, the Scottish Government has established a working group on sex and gender in data.

On freedom of speech, the Scottish Government is fully committed to this and there are provisions in the European Convention on Human Rights to protect freedom of speech.

Given the various provisions in this area, we have ticked the “none” box."

So this:

The Scottish Government is of the view that there is lack of evidence that including trans women in women-only services and spaces has negative impacts.

Seems to be the important thing to address, along with the issue that providers are being lied to about single sex exemptions.

Lack of evidence for negative impacts. Please

DEADLINE: 17th MARCH 2019

5.06. The Cabinet Secretary said in her Parliamentary statement that concerns about the impact GRA reform would have on women were not, at their core concerns about trans women. “Rather they are about men who seek to abuse women. The fear is that some men will misuse trans equality to access women and do us harm. I understand that. I understand that predatory men will always seek to find ways to harm women. That’s not a new problem in Scottish or global society – nor is it a problem created by, or the fault of, trans people”

1. Incorrect. Evidence suggest male transitioners continue to offend at the same rates as other men. So those male transitioners are also a problem.

2. Even if this is not a problem created by trans people, it is a problem created by this legislation. It cannot therefore be ignored with a shrug and a not their fault, not our problem.

They are so wilfully blind.

This statement is also in conflict with the later section you highlight ItsAll, where they claim there is no impact on women.

Interesting...

"5.18. Providers of services such as domestic abuse refuges may receive funding from the Scottish Government. As part of any application for funding, providers are asked to submit a plan on trans inclusion. Requiring an inclusion plan from funding recipients does not result in funding recipients being unable to rely on a relevant single sex exception. A recipient of the fund would be able to apply an exception which is available under the 2010 Act and could state as much in their inclusion plan. "

The fear is that some men will misuse trans equality

Oh and this is not “trans equality”. This is the desires of male transitioners being put above the needs of women.

Also interesting...

5.22. Paragraph 1 of schedule 9 provides a general exception to what would otherwise by unlawful direct discrimination, including a requirement that the person not be a trans person, where there is an occupational requirement due to the nature or context of the work, and this is a proportionate means of
achieving a legitimate aim.

5.23. In the Explanatory Notes for the 2010 Act an example given is that “acounsellor 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”.50

5.24. When appropriate, this exception could also be used in relation to health services where, for example, intimate health and personal care services are provided.

A recipient of the fund would be able to apply an exception which is available under the 2010 Act and could state as much in their inclusion plan. "

Yeah, ‘cos everyone is going to respond to “tell us your trans inclusion plans” with “we’re going to exclude them on the basis of sex”

Er what?

5.27 A further point which has been raised in this area is whether section 22 of the GRA, on prohibition of disclosure of information, could make it harder to use the general occupational requirement exception.

5.29. The Scottish Government considers it wholly appropriate to safeguard trans people in this way.

Oh hang on, should have read on...

^One point
which might arise when using the general occupational requirements
exception is that some people in an organisation (eg people in its HR
department) may know about a person’s trans history but those actually taking
the decisions on staff deployment (eg line managers) may not. In these
circumstances, and when there is a legitimate case to use the general
occupational requirements exception, the Scottish Government considers that
it would be appropriate for information about a person’s trans history to be
shared in a strictly limited, proportionate and legitimate way.^

And they might change the confidentiality section to allow details to be disclosed in more cases...

5.40. Therefore, trans persons can be excluded from communal accommodation when this is required for reasons of privacy, and this is a proportionate means of achieving a legitimate aim.

It's be very nice is ScotGov would let everyone know about all these exemptions that apply, and that Stonewall et al are completely wrong...

Can anyone explain to me how the single sex exemptions in the Equality Act are to be enforced? How can obvious males be excluded when all their ID documents tell us they are female?

5.56. The Scottish Government agrees that while the 2010 Act’s single and separate sex service exemptions will continue to apply after reform of the gender recognition process, non-statutory guidance by the UK Government could be helpful.

I think we all agree

What would happen with CRB checks?

5.57. The Scottish Government has carefully considered whether moving to a statutory declaration-based system for obtaining legal gender recognition, as outlined in the draft Bill, would impact adversely on the rights of women.

5.58. The key question in this context is very much about whether a change in the system for obtaining legal gender recognition would adversely affect women’s rights. The Scottish Government has concluded that it would not.

^5.59. In reaching this view, the Scottish Government has considered
international experience. As outlined in Annex E, there are a variety of
systems for obtaining legal gender recognition in other countries. There is no evidence from overseas which the Scottish Government is aware of which would suggest that moving to a statutory declaration-based system for obtaining legal gender recognition would impact adversely on the rights of women. Under the system which the Scottish Government is proposing for Scotland obtaining legal gender recognition will remain a serious step which could not be undertaken lightly^

What would happen with CRB checks?

This was actually specifically addressed:

^5.07. People cannot take advantage of the GRA to hide a criminal offence. Individuals can obtain disclosure certificates for employment purposes, but previous names must be provided as part of that process. If a trans person is applying for a disclosure certificate, they can apply using their present name, and that name is all that they have to include on the application form. Separately, and in the strictest confidence, they must also provide any previous
names to Disclosure Scotland. It is a criminal offence to make a false
statement in relation to an application for a disclosure certificate. As stated in Chapter 4, it will remain a criminal offence for anyone to lie or be fraudulent in order to obtain a GRC.^

So yes, it relies on hypothetical trans person with a record choosing to directly contact Disclosure Scotland with their previous names either through honest, or through fear of committing (another) crime.

One of the safeguards of the original GRA was the relatively small number of males who were expected to use female spaces. The Minister responsible also said review by the panel (so not just anyone would be granted a GRC) was another safeguard. In reality very few were refused.

With these proposals anyone can get a GRC with ease. Not only will there be a large rise in the number of males using women’s spaces, the very worst kind, the sexual fetishists, will be over-represented.