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No ‘real and concrete harm’ in gender reform law, says human rights chief

The Equalities, Human Rights and Civil Justice Committee took evidence on the Bill on Tuesday (Jane Barlow/PA)
The Equalities, Human Rights and Civil Justice Committee took evidence on the Bill on Tuesday (Jane Barlow/PA)

A human rights body has said it has identified no “real and concrete” concerns over Scottish Government proposals to reform gender recognition legislation.

Ministers have proposed to remove the need for a medical diagnosis of gender dysphoria for the obtaining of a gender recognition certificate, along with lower the minimum age from 16 to 18 and the waiting period from two years to three months with an additional three-month reflection period.

The proposals have proven controversial with women’s groups saying it could impact on the rights of women and girls, including access to single sex spaces and services along with provisions in sport.

Although witnesses before the Equalities, Human Rights and Civil Justice Committee in Holyrood, which is currently scrutinising the legislation, have said the Gender Recognition Reform (Scotland) Bill will not have such impacts.

Barbara Bolton, the head of legal and policy at the Scottish Human Rights Commission, said the body interrogated the legislation when it was introduced earlier this year.

“When the Bill came around again, the commission took a very conscious decision to look hard at this again,” she told the committee on Tuesday.

“That was in recognition of the time that has passed and the possibility that concerns had been clarified, that perhaps further evidence had been produced of real and concrete harm that might arise.

“We made a very conscious decision internally to devote time to it, to really assess it.

“We did so and we’ve concluded again that we cannot identify any objectively evidenced real and concrete harm that is likely to result from these reforms.”

She added: “The majority, if not all of the concerns that have been outlined, do not have appear to have a relationship with the proposals that are set out in this Bill.”

Transgender people, Ms Bolton said, would not be asked for their birth certificate or a GRC before accessing single sex spaces.

Ms Bolton’s view, and that of the Scottish Human Rights Commission, appears to be at odds with the UK-wide Equalities and Human Rights Commission (EHRC), which wrote to Social Justice Secretary Shona Robison earlier this year urging her to pause the legislation until the impacts on women and girls could be better understood.

In an earlier evidence session, EHRC chief strategy and policy officer Melanie Field told the committee: “Questions continue to be raised in different quarters about potential consequences, for example in relation to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women and practices within the criminal justice system.

“We fully recognise that these issues are complex, sensitive and divide opinion, but the current polarised debate is causing much harm and distress to people on all sides.

“Its our view that these questions should be engaged with and discussed and addressed carefully, openly and with respect before legislative change is made.”

The EHRC position was a reversal of its previous support for reform, with Ms Bolton saying the Scottish body was not able to find an analysis that informed their position.

“If you are looking at a piece of legislation that is proposing to further the rights of a marginalised group and you’re a human rights body, and your position is that you oppose that legislation, then there is a considerable burden on you to set out very, very clearly on what basis that is,” she said.

Ms Bolton’s view was bolstered by that of Victor Madrigal-Borloz, the UN’s independent expert on protection against violence and discrimination based on sexual orientation and gender identity.

He said, in an international context, there was no evidence of a clear risk in self identification, adding that there had been “no materialisation of the concerns that were raised theoretically in the process of adoption of those processes”.

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