THE UK’s leading equality body has warned the Scottish Government against simplifying the law on gender recognition.

The Equality and Human Rights Commission said “more detailed consideration” was needed if there was any attempt to overhaul the 2004 legislation which covers it.

It cited concerns about “extending the ability to change legal sex from a small defined group… to a wider group who identify as the opposite gender at a given point”. 

The EHRC said there could be consequences for data collection, participation and drug testing in competitive sport, the criminal justice system and other areas.

It said the “established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people” provided the correct balance.  

It also said it would  shortly issue guidance for "single-sex service providers".

Campaigners for reform accused the EHRC of being a UK Government puppet.

The message is contained in a letter from EHRC chairwoman Baroness Kishwer Falkner to SNP Social Justice Secretary Shona Robison, following a meeting of the pair last week.

The SNP-Green administration has promised to introduce a Bill at Holyrood by the summer on updating the UK Gender Recognition Act (GRA).  

This requires trans people who want to change gender in the eyes of the law to obtain a  certificate based on a medical diagnosis, in a process that takes at least two years. 

The new Holyrood law would remove the medical element and shorten the time to six months, relying on self-declaration before a notary public or a justice of the peace.

Opponents fear the move will see men who identify as women using single-sex spaces and services, such as refuges, some of whom may abuse the system to prey on women.

The issue has divided the SNP, with Nicola Sturgeon emerging as one of the staunchest advocates of change, dismissing concerns as simply “not valid”, even if sincerely held.

SNP MSP John Mason was today accused of sounding an "anti-trans dog whistle' for asking about men who have changed gender being inmates in women's jails.

In her letter, Baroness Falkner said that, like Ms Robison, she was “concerned at the polarised debate on this issue” which “caused much distress to people on all sides”.

She went on: “As you know, some lawyers, academics, data users and others have increasingly expressed concerns about the potential implications of changing the current criteria for obtaining a Gender Recognition Certificate (GRC).

“These concerns centre on the potential consequences for individuals and society of extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point. 

“The potential consequences include those relating 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, inter alia.

“As such, we consider that more detailed consideration is needed before any change is made to the provisions in the Act.

“We recognise that many trans people have criticised the current process to obtain a GRC as being intrusive, medically-based, bureaucratic, expensive and lengthy. 

“We are also concerned about the unacceptably long waiting times for gender identity services – in some cases over five years for an initial appointment. 

“We strongly welcome your commitment to improve gender identity services in Scotland so that individuals with gender dysphoria can obtain the support and treatment they need and begin the process of gaining legal recognition of their acquired gender.  

“As we work to promote and uphold equality and human rights law, we will continue to call for urgent improvements to gender identity services throughout Britain.

“We otherwise consider that the established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people and the ability for them to obtain legal recognition of their gender, collectively provide the correct balanced legal framework that protects everyone. 

“This includes protecting trans people from discrimination and harassment, and safeguarding their human rights. Our focus is on continuing to seek opportunities to use our powers to support litigation to protect trans people’s rights.”

Tim Hopkins, director of the Equality Network said: “The EHRC is not independent of government, but has its Board directly appointed by Liz Truss and the UK Government. 

“We assume that their appointees are responsible for this letter and for failing to stand up for equality for trans people. We do not need UK Government appointees telling us in Scotland how to legislate in devolved areas, and we look forward to the Scottish Government proceeding with this legislation soon, as has been promised many times.”

Vic Valentine, manager of Scottish Trans, said: “Reform of gender recognition is one of the most consulted-on policies of all time, with two comprehensive public consultations by the Scottish Government since 2017. 

“The draft bill was fully consulted on a year ago, and everyone had their say. The EHRC itself responded to both public consultations, supporting reform.

“There will of course be much more detailed consideration of the bill as it goes through the Scottish Parliament.”

Policy analysts MurrayBlackburnMackenzie welcomed the EHRC’s “serious and substantial intervention” on GRA reform in Scotland.

They said: “The Commission echoes concerns that have been put repeatedly to the Scottish Government by grass-root groups about the impact of reform on a range of policy areas, including data collection, legal protections for women, and criminal justice. 

“We urge ministers now to honour the SNP’s 2021 manifesto commitment to work with a range of stakeholders, and follow the Commission’s advice to undertake further detailed consideration before any change is made to the provisions in the existing Act, rather than press on with legislating for the self-declaration of sex.”

Scottish Greens equalities spokesperson Maggie Chapman said: “At a time when hate crimes against trans people and further threats to their rights are rising, this is a deeply disappointing intervention from a UK body supposedly about defending the rights of vulnerable people.

“While I’m glad the EHRC has recognised the clear need for improved access to gender services, to further delay long-overdue legislation reform to enable trans people to be who they are with fewer barriers will do little but amplify those voices who cruelly portray them as a threat.

“Scotland has had two consultations on GRA reform already. And the forthcoming proposals will be subject to significant scrutiny and debate in the parliamentary process.

“Trans people who have already waited far too many years for these basic reforms will be dismayed by the prospect of further delay, which is why the Scottish Parliament must ensure we follow the nations who have already led on this.”

The Scottish Government has been asked for comment.

An EHRC spokesperson added: "We have written to the Scottish Government with an update on our work on gender recognition, in advance of their proposed legislation expected shortly.

“The current polarised debate is causing much harm and distress to people on all sides. Everyone’s concerns should be discussed and addressed carefully, openly and with respect, to avoid further damage and division. 

“In light of the concerns raised since proposals to reform the Gender Recognition Act were consulted on, we have come to the view that further consideration is needed before any change to the law should be made.

"But we continue to call strongly for improvements to how it is implemented in practice, including far more and far faster services for people with gender dysphoria.

“As Britain’s regulator of equality and human rights law, we consider that the established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people and the ability for them to obtain legal recognition of their gender, collectively provide the right, balanced legal framework for the protection of everyone.

"This includes protecting trans people from discrimination and harassment and safeguarding of their human rights.”

Maya Forstater, executive director of the Sex Matters group, said: “The EHRC’s mature approach shows how the UK can lead the way in ensuring clear protection for the human rights of all.

"This is not just about 'trans rights' but also about women's rights and safeguarding children. 

"The equality watchdog has spoken up about the material reality of sex, and the potential for unintended negative consequences of legislating in haste.

"It is calling for clear definitions, evidence and respect for human rights.

"We hope that the governments in Westminster and Holyrood will listen to this advice.”

In response to the accusations of bias, the EHRC later said: "Impartiality is a core value of the EHRC.

"Our independence and impartiality is non-negotiable, is protected in statute, and is profoundly important to everything we do.

"As an independent regulator, we take all our decisions impartially, based on evidence and the law.

"Our decisions are made independently of any government.

"A proper process was followed in this instance, as always."

A Scottish Government spokesperson said: "We will consider the EHRC’s views, which have changed from their response to the 2019 consultation, along with those of others ahead of introduction of the bill.

“We appreciate the range of views on proposals to reform the Gender Recognition Act. We have always been keen to seek consensus where possible, and to work to support respectful debate, and will continue to do so.

“We have now consulted twice on our proposed changes. First on the principles of reform in 2017, and then in 2019 on a draft Gender Recognition Bill. We have published independent analyses of responses to both consultations.

“Our proposals to reform the current Gender Recognition Act do not introduce any new rights for trans people or change single sex exceptions in the Equality Act. Our support for trans rights does not conflict with our continued strong commitment to advance equality and to protect and uphold women’s rights.”