Losing sight of women’s rights: policy capture and public policy
Over recent years policies that represent a profound conceptual change in our understanding about what it means to be a woman or a man have been introduced in Scotland, premised on ideas about self-defined gender identity.
Departing from the legal definition of sex in the Equality Act 2010, founded on biological sex, this shift has taken place across a range of policy areas, including criminal justice, health, local government equalities policies, and guidance for women’s services.
Within the last two years, proposals by both the Scottish and UK Governments to reform the Gender Recognition Act 2004 (GRA) to allow people to change their legal sex based only on making a legally-registered self-declaration have sparked an intense debate on how sex and gender identity should be defined in law and policy.
However, changes have already been made far ahead of any reform of the law, in a wholly unregulated way.
Without due diligence, democratic oversight or scrutiny, Scottish authorities have introduced polices based on gender self-identification.
These policies have also set a much lower bar for establishing self-defined gender identity, compared to the GRA reform proposals put forward by the government.
To the best of our knowledge, none of the new arrangements require that a person has made a statutory declaration of their intention to live as a woman or a man for the rest of their life; even though the current statutory declaration system is open to this use, and it would be possible to insist on this.
Instead, policies rest simply on what people declare in that context about how they self-define, backed variously by some combination of the name they ask to be used for them, their preferred pronouns, whether they have any documents at all with an M or F marker, or none of these.
Our research (Murray and Hunter Blackburn, Scottish Affairs vol. 28 no. 3) considers how gender self-identification, without any requirement that a person has gone through any form of legal process, had already become a feature of Scottish policy-making and practice long before public consultation on GRA reform began. It presents two detailed cases studies where unregulated gender self-identification principles have gained traction: the census and Scottish Prison Service policy on transgender prisoners.
Looking at the census, the analysis traces the piecemeal introduction of self-identified gender identity principles from 2001 onward, and show how decision-making on the sex question has been shaped by a reference to a limited group of interests that have excluded those of women.
“How the sex question is framed in Scotland’s 2021 census is directly relevant to women’s rights and interests on several counts. In the first instance, the question will set a key precedent for how sex is understood as a policy and legal category.
The current attempt to put the principle of gender self-identification on a statutory basis further risks setting a legal precedent that will challenge the very basis of the Equality Act 2010, by embedding the idea that it is improper to ask a person to provide details of their sex.
In the specific context of the census, conflating sex and gender identity carries significant risks in terms of data quality and reliability. The sex question will also set a precedent for other data-gathering exercises, where there is now a risk that we will lose robust data about the male and female population.
In the Scottish Prison Service (SPS), policy on transgender prisoners’ decision-making in relation to accommodation and intimate searches are the issues which concern us.
The policy was intended to make moves of transgender prisoners, specifically including those who were pre-operative, from male to female prisons.
While the policy was relevant to the well-being and safety of two vulnerable groups of prisoners, women and transgender prisoners, decision-making focused exclusively on the interests of the second and ignored the first.
Notably, the Equality Impact Assessment, intended to consider how a policy might affect the nine protected characteristics in the Equality Act 2010, failed to recognise that the policy would affect female prisoners and prison officers at all.
The operation of SPS transgender prisoner policy remains opaque, with most information in the public domain accessed by Freedom of Information and/or media reports.
While badged as inclusive, our analysis suggests that in both cases decision-making has been directed towards the interests of one specific interest group, those with transgender identities, to the detriment of another, women and girls.
Uniting these examples is a failure of institutional safeguards designed to ensure that public policies are consistent with the law. It is clear that here, and elsewhere, public authorities have repeatedly failed to assess properly the impact on other groups who have specific protections under the Equality Act 2010, as the Act requires, and that little thought has been given to the possibility that such policies might be open to abuse by individuals with malign intent, irrespective of gender identity.
As gender self-identification becomes more common, either by law or, as in Scotland, without legal change, there is evidence to suggest that failing to anticipate such abuse is naïve. While proponents of GRA reform maintain that the unregulated introduction of gender self-identification in Scotland has not led to any problems, this remains unsubstantiated, principally because organisations have not systematically gathered information on the impact of the changes already made.
On one analysis, the analysis simply reflects that women remain, as a class, less powerful than men. From another perspective, it is a story about policy capture that demonstrates how a small number of influential actors appear to have secured a monopoly on how sex and gender identity are understood within Scottish policy-making.
That such a paradigm shift has taken place without formal scrutiny or proper monitoring, far ahead of legal change, raises serious questions as to why there has been such a persistent failure to consider the possible wider impacts of gender self-identification, especially on women, and the adequacy of institutional safeguards against well-organised lobbying.
This raises serious questions about what the OECD terms “policy capture” and the vulnerabilities of democratic policy-making to what we describe as “ideologically-driven lobbying”; that is, lobbying driven by a strong conviction in the truth of a particular idea, with potentially widespread implications.
This is now a significant challenge for the Scottish Government, which needs to review its policies, make clear its commitment to upholding the sex-based protections in the Equality Act 2010, and find a way to allow for open debate on sex and gender identity issues.
Beyond this, the dynamics and processes that have allowed this change to happen on such a scale with so little scrutiny for so many years deserve much closer attention.