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by Louise Wilson
14 June 2022
Scotland ‘at risk’ of falling behind on trans equality if GRA not reformed, MSPs told

Scotland ‘at risk’ of falling behind on trans equality if GRA not reformed, MSPs told

Scotland risks falling behind on improving trans equality if it does not reform the Gender Recognition Act, an academic has warned.

Speaking to Holyrood’s equalities committee, Professor Sharon Cowan – a professor of feminist and queer legal studies – said reform was an “urgent matter” for many trans people.

She said: “Rather than being an outlier, Scotland is at risk – as it was with the Gender Recognition Act in 2004 – of being one of the last to reform its law in this area.”

The committee is taking evidence on the Gender Recognition Reform Bill, which seeks to makes the process for acquiring a gender recognition certificate (GRC) easier for trans people.

But there has been significant opposition to the bill over its possible consequences on the rights of women, namely the protections in place under the Equality Act around single-sex spaces.

MSPs were told there is a lack of clarity around the definition of sex in that legislation.

Naomi Cunningham, chair of Sex Matters, suggested sex refers to biological sex and therefore obtaining a GRC should make no difference to the operation of the Equality Act.

But she added that legislators “can’t be sure” that that is the case given the definition has not been tested in the courts.

Karon Monaghan, a barrister, said sex under the Equality Act meant legal sex and therefore trans people with a GRC could not be excluded from single-sex services, unless it could be justified as “legitimate” and “proportionate”.

“What’s proposed in the bill, the cohort of people who are entitled to a gender recognition certificate and therefore can access women-only spaces, where justified, is very much larger and very much larger than we can assume parliament intended when it enacted the Equality Act,” Monaghan said.

She recommended that if parliament wanted to move away from medical gatekeeping for getting a GRC, it should instead put in place another “objective assessment” to define “what a trans person is and how they meet the threshold”.

But Cowan said the bill would not change the operation of the Equality Act because trans people could still be excluded from single-sex spaces. She said: “People can still be excluded, whether or not they have a GRC. If there are more people with a GRC, then potentially there are more people who can be excluded but again the bar is high.”

Cunningham also raised concerns that the potential to open up single-sex spaces to trans people could have a “chilling effect” where marginalised women in particular will begin to “self-exclude”. She added: “It’s bodies, not identities and not certificates, that affects those needs and feelings.”

In a separate session, David Parker, lead clinician at the National Gender Identity Clinical Network, told the committee he supported the bill in large part due to the long waiting times trans people face when accessing medical support for transitioning.

Parker said: “The current process to obtain a GRC is seen by many as a complex system to navigate in order to be properly recognised as their authentic selves. We welcome the proposals to make this process more accessible and I cannot overstate the positive impact this will have on the wellbeing, esteem and sense of equality for trans people.”

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