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Railroaded: gender recognition reform and policy capture

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POLICY CAPTURE is where decisions over policies are repeatedly directed away from the public interest towards a specific interest. The consequences of policy capture can be damaging not just for confidence in democratic values and trust in government, but can also serve to exacerbate inequalities and hurt the economy. Put simply, the need for integrity in public decision making is then fundamentally eroded by policy capture.

Mitigating the dangers of special interest groups capturing policy processes is vitally important at all times for all democratic governments. It becomes all the more essential, however, when a liberal democracy is grappling with a controversial issue such as proposed reform such as in the Gender Recognition Act. For positive and sustainable policy outcomes to be achieved when confronted by competing rights claims in a liberal democracy, the integrity of the processes through which reform is achieved is fundamental.

It is deeply disturbing then to note the Gender Recognition Act (Scotland) Bill has been subject to significant and growing controversy.

While I and many others support reform of the Gender Recognition Act (GRA), I am nevertheless struck by the valid grounds for concern as to how the reform process has been conducted by the Scottish Government.

Analysis conducted by academics Dr Kath Murray (research fellow, University of Edinburgh) and Lucy Hunter Blackburn (PhD student at University of Edinburgh, previously a senior civil servant at the Scottish Government) indicates that the roll-out of gender self-identification in Scotland has been taking place amid a lack of due process amid policy capture by special interest groups.

The academics revealed in a 2019 case study published in the Scottish Affairs Journal for Edinburgh University Press that “gender self-identification had in fact become a feature of Scottish policy-making and practice, long before public consultation on GRA reform began”. They go on to make clear,

“The analysis shows that the unregulated roll-out of gender self-identification in Scotland has taken place with weak or non-existent scrutiny and a lack of due process, and that this relates to a process of policy capture, whereby decision-making on sex and gender identity issues has been directed towards the interests of a specific interest group, without due regard for other affected groups or the wider population.”

But precisely how has the GRA reform policy process been subject to capture by special interests? What empirical examples can we point to which suggests decisions over policies are being directed away from the public interest towards a specific interest?

The rollout of gender self-identification has exposed a policy process riven by ideological as opposed to evidence-led considerations. Especially in the unfolding debate concerning the collection of data on gender self-identification and birth sex.

If we consider the evidence session on the Gender Recognition Reform (Scotland) Bill which took place at the Scottish Parliament’s Equalities, Human Rights and Civil Justice (EHRCJ) Committee just this month, we can see the problems.

The Committee was taking evidence regarding prisons and data. It turns out that in regards to the data aspect, the Committee only heard from two witnesses. Both of whom are on record supporting replacing data on birth sex with data on self-declared gender identity.

Indeed, one of the two witnesses giving evidence to the Committee was Dr Kevin Guyan, author of Queer Data, who works as a Research Fellow on the ORA-funded GEP Analysis study into gender equality policies in film. In short, his area of expertise indicates that he does not study population data in the way other experts will study population data.

The persistence of the Scottish Government in treating Dr Guyan as an expert in data collection is frankly inexplicable. Especially given experts such as Professor Alice Sullivan, Professor of Sociology at University College London and expert social statisticians who have spoken out in favour of accurate data collection on sex alongside gender identity were not called.

Commenting to me regarding the Committee and its processes Susan Smith, co-director of For Woman Scotland said,

“the bias shown in the selection of witnesses to give evidence is a damning indictment of how skewed the process is, and how the Committee is failing to do their job. Which is to examine the evidence and to give weight equally to the evidence they received.”

And the spectre of policy capture and lack of due process can be seen beyond the confines of the Holyrood EHRCJ Committee.

It is a fact that long before the GRA public consultation process began, self-declared gender identity data had already replaced sex in many public bodies and institutions. A creeping process has occurred where Scottish data collection practices have embedded self-declared gender data at the expense of birth sex. This has occurred without appropriate oversight. It potentially risks undermining the legitimate needs of women and girls, policymaking, and research.

As the Edinburgh-based policy analysis collective Murray, Blackburn and Mackenzie (MBM) write,

“It means that Scotland lacks the necessary information to monitor discrimination and disadvantage experienced by women on the basis of sex.”

It is an alarming realisation that the ability to monitor and therefore effectively counteract discrimination against women on the basis of sex is a very real potential outcome of the Scottish Government’s determination to side-line the collection of data based on birth sex. And let nobody waste time by claiming women are not discriminated against on the basis of sex; such discrimination does indeed occur in our society.

We are seeing sex being overwritten by gender identity in multiple public bodies as they anticipate the Gender Recognition Reform (Scotland) Bill coming into law. This is occurring due to the Scottish Government Bill (as currently drafted) insisting that sex as a biological category should become secondary to self-declared gender identity – thereby solidifying the loss of birth sex data.

If we consider the specific case of the Scottish Census, we can see this phenomenon play out. National Records Scotland explains,

“It is important to recognise that the development of Scotland’s Census sits within a wider Scottish Government context. NRS has worked closely with colleagues in the Scottish Government undertaking the Gender Recognition Act consultation and consultation with colleagues in Equality workstreams to ensure a cohesive approach to the census questions.”

As a result of this need to ensure the census fit within a ‘wider Scottish Government context’, a binary “sex” question was accompanied with guidance framing it as a question about self-declared gender identity. And it should be underscored that this occurred against expert academic advice. The end result is the Scottish census data on sex will not be comparable with UK census data. Furthermore, as Murray, Blackburn and Mackenzie make clear, “nor will the data be suitable for equality monitoring purposes, as it will not match ‘sex’ in line with its meaning under the Equality Act 2010.”

This fits into a concerning pattern where the GRA reform process has been captured by special interests, and failing to properly or robustly ensure wider stakeholder engagement. Especially when we note that during the design and testing of the census regarding a non-binary self-identified sex question witnessed National Records Scotland (NRS) officials not consulting with women’s groups or representatives at all prior to 2019. Yet while NRS failed to consult women’s groups, cognitive question testing with ‘communities of interest’ did occur and was based on just 23 individuals. All of whom were recruited exclusively via LGBT groups.

As Susan Smith, co-director of For Woman Scotland explained to me, even after women’s groups were consulted, it was very clear that the concerns that were being brought to the table had not been adequately addressed. She described to me a process which seemed to be possibly for form only, “It seemed to be an exercise in trying to persuade rather than to listen. Or to prove that they have spoken to people.”

It is increasingly clear that the ‘wider Scottish Government context’ regarding Gender Recognition Reform throughout the GRA policy process has been a story of policy capture without adequate consultation and engagement with impacted groups and the wider population.  This can be made even more clear when examining the systematic side-lining of inconvenient expert opinion not fitting with pre-determined ideologically motivated goals.

In September 2019 the Scottish Parliament’s Culture, Tourism, Europe and External Affairs (CTEEA) Committee received a letter by Dr Kevin Guyan and co-signed by 53 academics. It urged the Committee to allow for census sex question with guidance that directs people to respond based on their self-identified gender. But when you read their letter, you quickly realise that precious few of the academic signatories indicate details of their area of academic expertise.

Whereas a December 2019 a letter was submitted by no-fewer than 80 experts in social statistics and users of population level data, including some of the UK’s leading social scientists and ten Fellows of the British Academy. Their letter concludes with the following,

“As experts in social statistics and users of population level data, we call on the UK’s census authorities to retain the integrity of the category of sex, and not to conflate this with gender identity”

All of the signatories to this letter gave information on their area of academic expertise. And that actually matters, since it establishes that they all derive from professional academic backgrounds relevant to a debate about the validity and reliability of population data. Yet the Scottish Government prioritised the evidence that confirms their view. As women’s advocacy group For Woman Scotland’s co-leader Susan Smith informed me, this suggests “either an extraordinary ignorance or extraordinary bias on the part of the Scottish Government”.

In February 2021 91 quantitative social scientists wrote to Scotland’s Chief Statistician to express deeply rooted concerns regarding the proposed loss of data on birth sex. Those 91 experts wrote in their letter the following:

“We find the conclusion that sex-based data should rarely be collected astonishing. Sex is a fundamental demographic variable, essential for projections regarding fertility and life expectancy. We need accurate data, disaggregated by sex, in order to understand differences in the lives of women and men, and in order to tackle sexism. Sex matters from the start of life, as illustrated by international differences in the sex ratio at birth due to son preference (Chao et al. 2019). Sex is a powerful predictor of almost every dimension of social life: education (Stoet et al. 2016), the labour market (Joshi et al. 2020, Bryson et al. 2020), political attitudes and behaviour (Green and Prosser 2018), religion (Voas et al. 2013, Voas 2015), crime (Ministry of Justice 2017), physical health (Koblinsky, Campbell and Harlow 2018), mental health (Ploubidis et al. 2017), cultural tastes and consumption (Sullivan and Brown 2015) – the list goes on. It is difficult to think of an area of life where sex is not an important dimension for analysis. A lack of sex-disaggregated data often leads to the needs of women and girls being ignored (Perez 2019)”

But as is noted by Murry, Blackburn and Mackenzie,

“Instead, the Scottish Government has given precedence to assertions put forward by activists who are not close to having an equivalent level of expertise in dealing with population data”

Finally, we turn to two court cases which have occurred. Firstly, the February 18th 2022 ‘For Women Scotland vs Lord Advocate and Scottish Ministers’. This case established that under the Equalities Act 2010 the protected characteristic of ‘sex’ refers to biological males and females and is distinct and separate from gender reassignment. This case established that the Scottish Government legislation (Gender Representation on Public Boards (Scotland) Act 2018) which – laudably – aimed at positive action measures aimed at increasing the percentage to 50% of women serving as non-executive members on Scottish public boards. But the court found that the Scottish Government’s redefinition of ‘woman’ “conflates and confuses two separate and distinct protected characteristics”. Furthermore, the government could have sought to enhance the opportunities for woman (as defined by biological sex) and “for any other protected characteristic, including that of gender reassignment. That is not what they have done.”

This case indicates a Scottish Government as far back as 2018 seeking legislatively to redefine ‘woman’, without adequate policy processes of consultation and engagement, thereby leading to a defeat.

The second court case is the February 24th 2022 ‘Play For Women vs the Registrar General and the Scottish Ministers’.  This case exposed a Scottish Government going to court to ensure their right to ask a census binary sex question with accompanying guidance which would render data collected unsuitable for equality monitoring purposes.

Remarkably, the Scottish Government counsel Douglas Ross QC stated to the Court that “It may once have been thought that sex at birth is immutable. It is no longer so”. As legal arguments go, it is quite a nice touch. But what this reveals is a Scottish Government disinterested in scientific arguments, merely legal ones. Something can be a legal truth, but not a scientific one. After all, the law can be changed to say anything, but objective scientific truths do not necessarily correspond.

Ultimately the February 24th case saw judges argue that biological definition of sex may be needed “in prescribed circumstances involving status, proof of identity or other important rights”. This means that despite the Scottish Governments strenuous legal efforts, the definition of sex from the earlier For Woman Scotland case was reaffirmed.

Ultimately, across multiple dimensions, it is clear that the Scottish Government has failed to ensure policy processes that all sides of the GRA debate can have confidence in. Far from failing to avoid policy capture on grounds of incompetence, however, the displacement of public interest in favour of special interests seems to have been a central goal throughout. And it is worth reiterating the obvious, that railroading controversial policy reforms toward a predetermined destination regardless of expert evidence or careful weighing of stakeholder engagement is deeply corrosive to any potential outcome. Especially when dealing with emotive issues such as a clash of rights claims in a liberal democracy.

No side or group with a stake in the outcome of the Gender Recognition Act (Scotland) Bill has been well served by the policy processes overseen by this Scottish Government. Nor can wider Scottish society hope for a nuanced and moderate debate regarding data collection. Thanks to policy capture and railroading presided over by this Scottish Government, we are all losing out.

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