Watchdog's gender guidance 'may lead to discrimination', says Scottish Government

Ministers raised concerns over the "potentially discriminatory and unfair" impact of the Equality and Human Rights Commission's draft code of practice.

The EHRC is consulting on new guidance about how the Supreme Court's judgment should be implemented. Judges unanimously ruled in April that a woman is defined by biological sex under equality laws, following a long-running legal case brought by the campaign group For Women Scotland against the Scottish Government.

In its submission to the EHRC, the Scottish Government said it accepted the judgment and is taking action to review existing policies.

But it said it is "absolutely clear that trans men, trans women, and non-binary people are valued in our society", and argued they had become the focus of "disproportionate marginalisation and media attention".

The Government said there was an emphasis in the draft code of practice on exclusion as opposed to inclusion, and also raised potential human rights implications.

"We note that the impact of the guidance may lead to situations where some members of the public will take it upon themselves to judge appearances and assume someone’s sex based on their perception of that person’s sex or gender identity,” it said.

“This sense of distrust in others and social policing of bodies is detrimental not only for trans and non-binary people, but for those who are born male or female who may not fit into society's current expectations of what a man or woman looks like, which change over time, and in different contexts and places."

The Government said an example provided in the consultation “seems to encourage service providers to adopt this attitude when considering whether someone can access a service”, adding: “Encouraging a situation where authority is given to question someone’s biological sex and ask for proof thereof may lead to abuse if not done appropriately.

“At the same time this places an undue burden on individuals, requiring untrained staff / providers to make assumptions or judgments about whether a person appears to present as trans, which is potentially discriminatory and unfair.

“We would ask the EHRC to consider the impact of this on public authorities’ obligations under the public sector equality duty to foster good relations between people who share a protected characteristic and those who do not, and the related impact on community cohesion."

Elsewhere, the Government asked for clarification around whether the code should be applied by employers to workplace facilities.

Scottish Conservative equalities spokeswoman Tess White said: “The SNP aren’t just failing to implement the Supreme Court’s verdict, they now appear to be criticising the EHRC.

“The judgement from the UK’s highest court was crystal clear, yet the nationalists are still desperately stalling for time and trying to pass the buck. This doesn’t just send the wrong message, it puts women and girls in danger.

“The Sandie Peggie case shows exactly what happens when organisations pander to gender extremists instead of standing up for women’s rights.

“Scots won’t be fooled by the SNP’s blatant attempts to run down the clock. John Swinney must act now and order all public bodies to follow the law and provide single-sex spaces."