Month: November 2022

New clause 15A of the Gender Recognition Reform (Scotland) Bill: a chocolate fireguard? 

The Gender Recognition Reform (Scotland) Bill proposes a raft of amendments to the gender recognition process in Scotland. It sounds dry and technical, and of interest only in Scotland. But the changes proposed by the Bill, including sweeping away the requirement for a medical diagnosis and reducing the minimum age to 16, will be of great legal and practical significance south as well as north of the border. This is because Scottish GRCs will be available to anyone who is resident in Scotland at the time of the application, or whose birth or adoption was registered in Scotland. If it goes through, there will soon be many individuals holding Scottish GRCs – granted on the basis of radically loosened criteria – resident in the rest of the UK. 

Similar changes were mooted by the Westminster Government in its 2018 consultation on GRA reform, but abandoned in light of the responses to that consultation. 

There’s much current debate about what exactly a GRC means for the operation of the Equality Act 2010, and especially for the operation of the single-sex exceptions in the Act. As yet, there are no definite answers provided by binding case-law. It has been widely argued that a GRC allows a biologically male holder easier access to all women-only spaces (toilets; changing rooms; single-sex hospital wards – including locked psychiatric wards where some of the most vulnerable and traumatised women in society are detained; rape crisis centres; prisons etc) subject only to very narrowly construed exceptions. Official guidance on the subject is in a state of flux. A statutory Code of Practice published in 2011 by the EHRC, the UK’s equality law regulator, suggests that a person with a GRC must be treated for the purposes of the exceptions as being of the “acquired sex”, which makes it more difficult to justify exclusion. More recent non-statutory guidance is silent on the impact of a GRC, and the 2011 Code is now under review.

If the Bill in its current form is passed, single-sex spaces and services will come under intense pressure from members of the new, larger group possessing GRCs who feel entitled to automatic access. And public authorities and service-providers may well often be intimidated into allowing that access by the complexity and uncertainty of the potential legal arguments. There is already plentiful evidence that providers are struggling to understand the law here. Both the EHRC and the UN special rapporteur on violence against women and girls have raised grave concerns about the impact of the Bill. 

At Stage 2, Labour’s Pam Duncan-Glancy MSP introduced an amendment that purports to deal with these worries. This was agreed, inserting into the Bill a new clause 15A. Having given evidence to the Scottish Parliament on these subjects earlier this year, I want to supplement that evidence to comment on whether the amendment deals with the concerns above. 

 Clause 15A says: 

“For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”

This is vacuous. The Bill couldn’t modify the Equality Act if it wanted to, because equal opportunities is a subject that has been explicitly put beyond the legislative competence of the Scottish Parliament by the Scotland Act 1998 (schedule 5, part II, paragraph L.2). If an Act of the Scottish Parliament purports to do something beyond the Parliament’s legislative competence, the provisions in question are simply ineffective. 

So this new clause does precisely nothing. 

The problem was not that the Bill (before amendment) modified the Equality Act – it couldn’t do that anyway – but that the Bill makes it much easier to get hold of a certificate that may have profound consequences for the way in which the single-sex exceptions in the Equality Act operate. As another witness to the Scottish Equalities, Human Rights and Civil Justice Committee suggested, this is best understood by thinking of those provisions of the Equality Act as creating a locked door to which only a few people have the key. The new clause added by Pam Duncan-Glancy’s amendment says: “For the avoidance of doubt, we’re not removing the door, or changing it or its lock in any way.” That’s irrelevant. The door and its lock are safe in Westminster, and the Scottish Parliament couldn’t change them if it tried. What the Bill proposes to do – and at least arguably can do – is manufacture thousands of extra keys to the door, and hand them out to pretty much anyone who says they’d like one. The amendment doesn’t address that. 

That’s not to say that the Bill couldn’t be amended to make explicit that any GRC issued under it has no effect for the purposes of the Equality Act. The EHRC suggested something very like the amendment proposed at Stage 2 by Foysol Choudhury MSP to achieve this, but the Scottish Government rejected it. 

For such an amendment to be fully effective, it would ideally be accompanied by changes to the privacy provisions in Section 22 of the GRA 2004. This section already creates confusion and fear among service-providers. At least one Scottish health authority has stated that it cannot guarantee female healthcare on the grounds of protecting privacy. The Employment Lawyers’ Association analysed the problem at paragraphs 27-30 of its written evidence to the Westminster Parliament of November 2020. 

A petition lodged at Westminster by Sex Matters earlier this month asks the UK Government to modify the Equality Act 2010 to put it beyond doubt that the terms “sex”, “male”, “female”, “man” and “woman” in equality law mean biological sex and not “sex as modified by a Gender Recognition Certificate”. This is something only Westminster can do, but it is a simple and powerful solution that would bring closure to the heated and sometimes toxic debate about what exactly is the impact of a GRC on the operation of the Equality Act. 

This problem can be solved in various ways, but clause 15A isn’t one of them. 
______________________

Naomi Cunningham is a barrister specialising in discrimination law.  She gave evidence to the Scottish Parliament in June 2022: https://www.scottishparliament.tv/meeting/equalities-human-rights-and-civil-justice-committee-june-14-2022; and to the Westminster Equality and Human Rights Committee.  She was a member of the working group that wrote the response of the Employment Lawyers’ Association to the Women and Equalities Committee’s 2020 call for evidence. The commendably non-partisan working group also included Robin Moira White and Nicola Newbegin, authors of a 2021 book, “A Practical Guide To Transgender Law”.

Chesterton’s Fence

Guest Blog by Cyclefree, a lawyer/investigator specialising in financial services and whistleblowing investigations.

“Lessons will be learnt”. How often do we hear this? If only. Lessons are not learnt: not by those who should learn them; not enough to prevent similar problems happening again.

Why?

1.      The memory hole

If a few years ago, who remembers the investigation or report? Or that it might contain something relevant now? Gavin Williamson resigned over bullying allegations against MPs and civil servants. But no commentator mentioned the 2018 Dame Laura Cox report[1] into bullying within Parliament. It was promptly buried with no action taken. So here we are. Again.

2.      This time it’s different

The 4 most dangerous words in the English language. Not true and too often an excuse for ignoring lessons painfully learnt.

3.      Defining the question to get the answer you want

See Credit Suisse in trouble over Archegos[2], a fund run by a man who, when running a different fund, was convicted for insider dealing. How did they get themselves comfortable? Well, by saying this was a different legal entity thus ignoring the character, history of the man in charge and the risks this posed.

4.      La-la-la: I’m not listening. Or asking. Denying evidence, not making inquiries so as to 

avoid getting inconvenient answers, refusing to listen to those raising concerns, retaliating 

against whistleblowers are all too common. Believing what fits with your preconceived

opinions commoner still. As is dismissing concerns as a “moral panic”.

5.      Groupthink: With the latest fashionable cause, it becomes easy to ignore those asking 

difficult questions or challenging the proposals. Easier to go with the flow than be a member

of the awkward squad, especially if retaliation is feared or threatened[3].

Remarkably, the Scottish government has taken all of these routes in its response to those asking questions about the GRR Bill. Consider this by Shona Robison earlier this year –

“There is no evidence that predatory and abusive men have ever had to

pretend to be anything else to carry out abusive and predatory behaviour.”

She went on –

“The evidence is critical in relation to this issue.” 

Indeed. It is. She clarified –

“If we look at the evidence, the threat to women and girls comes from 

predatory and abusive men, not the trans community.”

Note the assumption that not only is there no crossover between predatory, abusive men and those claiming to be trans but there can never be such a crossover.

Still, no evidence? Really? Let’s be kind and accept she was only referring to those countries which had brought in self-ID as planned for Scotland. The Scottish government is always keen to emphasise how in line with international best practice it is. So it must surely have looked at what the evidence actually showed. Yes? Alas, no – as seen in this summary of the international position by MurrayBlackburnMackenzie[4].

It’s worth noting: 

(1)     the Scottish government has admitted that it has not found or done any research on the 

impact of self-ID laws on women in these other countries[5]. Always easiest to claim there is 

no evidence if you don’t bother looking for it, of course.

(2)     In fact, there is evidence of significant problems affecting women, for instance, men ID’ing as women to obtain access to women in places such as prison. In Canada, the US, even Argentina where self-ID was first enacted in 2012.

Let’s look more widely. Is there any evidence in, say, the UK of abusive men pretending to be something else in order to abuse? Or using the cover of something fashionable or respected to carry out abuse? 

–      A celebrity famous for his charitable activities, say? Why, yes: see Jimmy Savile. 

–      Or an inspirational Olympic-winning swimming coach? Yes again – see George Gibney[6], one of many male sports coaches abusing those entrusted to their care. 

–      What about the 19 IICSA Investigation Reports[7] into the multiple ways in which men abused their positions as priests, teachers, social workers, foster carers, sports coaches and so on to harm the vulnerable? An unbearable amount of evidence there.

–      Too long ago, maybe? Well, in the last week the HMICFRS Report[8] into the police has detailed how predatory men have become policemen, using that position to abuse women, girls and children.

–      What about Scotland? How about convicted sex offenders abusing loopholes allowing them to change their identity[9], the essence of the proposed GRR Bill? Yes, this has happened. 

–     Or England? How about someone seeking to dupe a women’s refuge into letting a paedophile who claimed to be transto stay there for 71 days[10]. Again, yes.

But these abusers are not from the trans community, might be the reply. Alas, there is evidence of men claiming to be trans and using that claim to gain access to victims[11]. Or to abuse victims then claim to be trans to avoid or mitigate punishment or gain access to women’s prisons where more victims may be found[12].

What is not yet known – or not with great clarity – is whether those men who are either diagnosed with gender dysphoria or claim to be trans without such a diagnosis have the same rate and type of offending as other men or a higher or lower rate. Getting and understanding such evidence is surely essential before anyone can say that the “trans” community (however defined) poses no risk. Of that, however, there is no sign.

The scale of abuse by male predators is hard to assess. Not all is reported. But that there is overwhelming evidence, accumulated over decades – about how predators operate, how they gravitate to places where victims are found, how they put themselves in positions where it is hard for them to be challenged, how loopholes are abused, opportunities exploited – is undeniable. There is no sector, class, place or profession where it does not happen. There is no group of people immune from being predators. There is no basis for saying that men who are or claim to be trans cannot be – and are not – abusers.

Two facts are clear: overwhelmingly, sexual predators are men; overwhelmingly, their victims are females. The burden is surely on those proposing a reform allowing any man over 16 to change gender purely on his say-so to show why – and how – it will not be abused or exploited by those claiming to be trans.

Two arguments are often used by the reform’s defenders. 

(1)     Equating trans people with predators is unfair and offensive. 

It is no better than those who, opposed to gay rights, claimed that gay men were paedophiles. 

Current concerns are another unjustifiable moral panic. 

A strawman. It is not that trans people are abusers by definition. Of course, they aren’t. Rather, there will be abusers claiming to be trans in order to commit crimes or otherwise gain some advantage. It is they who are being unfair to trans people by using them as cover to exploit the opportunities the reformers will enable[13].

Second, see what IICSA’s final report says: allegations of a moral panic about child abuse allowed a culture of denial of what was happening, giving cover to abusers[14]. There were instances of paedophiles who used councils’ desire to increase “diversity” to get jobs where they could abuse children, jobs they would not have got had there been proper due diligence and a focus on what mattered – safeguarding[15].

The same point was made in last week’s report on the police. The recommendations of previous reports were ignored, the police were largely in denial about the problems, when women officers reported concerns they were not taken seriously, other considerations prevailed and risk assessment was poor. As the Chief Inspector wrote: “The police must be much more sceptical of those who want to wear the uniform.” [16]

(2)     “Ah, but men don’t need to use self-Id to carry out abuse” , say the reform’s defenders. 

After all, these crimes were committed before self-ID is even legally blessed. Well, not quite 

true. But how does that help? If men have already been claiming to be women in order to

commit crimes, avoid punishment or get a lighter regime, why wouldn’t that increase once

self-ID is enshrined in law, with the legal consequences the Scottish government is right now

claiming before the courts?[17] It is not just the police who need to be “much more sceptical”.

This rebuttal misses the point. Of course, predators don’t need self-ID to commit abuse. Sexual predators don’t needto become teachers, priests, sports coaches, entertainers, charity workers or anything else, either. But they do. 

The key questions – those the Scottish government has carefully avoided asking – are:

–        Are there risks that this reform – and how it is enacted – could be abused?

–        How great are those risks? 

–        What are the consequences and for whom, if the risks are realised?

–        Does it prevent or limit challenge, an essential safeguarding requirement?

–        Can the risks be mitigated or eliminated? If so, how?

–        If they can’t, should the reform go ahead at all or in its current form?

Three important lessons from previous reports are these: 

(1)     Boundaries matter – whether physical, safeguarding procedures, vetting, due diligence, 

processes, legal requirements, conditions to be complied with, verifications or, in Matt Parr’s

words, “scepticism” about why someone wants to join a particular group. 

(2)     Ignoring previous reports, recommendations and evidence will make problems much

 worse.

(3)     Scandals happen when those boundaries are abolished, ignored, weakened or seen as

secondary to some more important purpose: “diversity”, for instance, or the reputation of an

institution or group, when challenge is made unacceptable. 

In Chesterton’s words – in their haste to remove the fence, people forget why the fence is needed. 

The final IICSA report says that years ago child abuse was not perhaps as well understood as now. It is not much of an excuse for behaviour which even then was wrong. But it may explain why it was not taken seriously as it should have been. The same can also be said of violence against women. 

There is no such excuse now. It is unconscionable for the Scottish government to ignore evidence, to refuse to listen to women who have suffered abuse[18], to refuse to acknowledge the possibility of risks let alone assess them, to take no steps to mitigate them, not to do the necessary research, to assert what they would like to be true rather than engage and explain. 

If it continues to ignore the lessons of previous scandals and repeat the same mistakes, then the dismal cycle of harm to the vulnerable, scandal, outrage, investigation, report, apology and promises to learn those lessons will inevitably be repeated. This is bad law and even worse governance. Above all, it is an abdication of responsibility those in public office have to citizens, especially the most vulnerable.

[1]  The report can be found here – https://www.parliament.uk/globalassets/documents/Conduct-in-Parliament/dame-laura-cox-independent-inquiry-report.pdf

[2]  See https://barry-walsh.co.uk/same-old-same-old/

[3] See the First Minister’s response to the resignation of Ash Regan. And the decision by 8 SNP MSPs not to vote for or abstain on the GRR Bill.

[4] https://murrayblackburnmackenzie.org/2021/09/08/gender-recognition-reform-and-international-developments/

[5]  See https://archive2021.parliament.scot/parliamentarybusiness/28877.aspx?SearchType=Advance&ReferenceNumbers=S5W-26950&ResultsPerPage=10

[6]  https://www.bbc.co.uk/sounds/brand/p08njhrm – this podcast details Gibney’s crimes over decades and their impact on his victims.

[7] The reports can be found here – https://www.iicsa.org.uk

[8] See https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/an-inspection-of-vetting-misconduct-and-misogyny-in-the-police-service/

[9] See https://www.scottishdailyexpress.co.uk/news/politics/snp-ministers-urged-close-sex-28360507

[10] See https://www.thesun.ie/news/9679107/transgender-paedophile-duped-staff-domestic-violence-refuge/

[11] See https://transcrimeuk.com

[12] See https://www.scottishdailyexpress.co.uk/news/scottish-news/male-prisoners-changing-gender-under-28149343

[13] Chapter 4 of the 2018 Morgan report on Islington Council is illuminating on how abusers seek to piggy-back on more respectable organisations, to the reputational detriment of the latter. See https://www.islington.gov.uk/-/media/sharepoint-lists/public-records/communications/information/adviceandinformation/20182019/20181107sarahmorganqcreviewreport.pdf.

[14] See the Background and Context section of IICSA’s Final Report’s Executive Summary: “The notion that child sexual abuse was ‘not harmful’ persisted into the 1990s and, in some professional spheres, responses to it were seen as ‘over zealous’ and characterised as a ‘moral panic’.” 

[15] See the 1994 White Report (https://islingtonsurvivorsnetwork2.files.wordpress.com/2021/03/the-white-report-redacted.pdf) and the 2018 report by Sarah Morgan QC on Islington Council (footnote 12)

[16] See the Times article by the Chief Inspector of the Police, Matt Parr – https://www.thetimes.co.uk/article/matt-parr-trust-is-badly-damaged-but-not-beyond-repair-z09gd56r3

[17] See the current judicial review by ForWomenScotland against the Scottish Government – https://forwomen.scot/18/07/2022/judicial-review-2/

[18] See https://www.lbc.co.uk/news/women-survivors-of-male-violence-brand-msps-refusal-to-hear-them-a-kick-in-the-t/