The Scottish Government’s formation of a Working Group to examine ‘problems’ that impact non-binary people is a step in the right direction but might not go far enough.

Having now published a report and list of recommendations, does the Government’s response to the Working Group signal an early step in a longer-term programme of change or merely give the illusion of action?

In July 2022 the Scottish Government published its response to a report and detailed list of recommendations published by the Working Group for Non-Binary People’s Equality.

This blog does not focus on the details of each recommendation, what the Government chose to accept and decline, or reasons behind these decisions. My interest is what this episode tells us about what the Government understands as a ‘problem’ and what is imagined as possible solutions. Many things are problematic for different people, depending on the time, place and context. But only some things are elevated to the status of a ‘problem’ in the eyes of politicians and policymakers.

Going further, what does the report, recommendations and response tell us about institutional solutions to LGBTQ ‘problems’ that stretch beyond those associated with the 2000s and 2010s (for example, service in the armed forces, marriage equality and adoption rights). The Working Group’s report foregrounds an expanded programme for change that includes issues related to healthcare, data and law, and access to services – topics of importance for non-binary people, LGBTQ groups and other minoritised communities across Scotland.

This blog therefore presents a lesson in what might happen when governments (or other large institutions) begin to engage issues of non-binary inclusion:

• What gaps emerge between evidence about the ‘problem’ and actions to fix the ‘problem’ described?
• What solutions are understood as possible and impossible?
• Do institutions imagine change is feasible without an overhaul of existing structures and systems?

A Brief History

The Scottish Government convened the Working Group for Non-Binary People’s Equality to make recommendations to Ministers that would make Scotland a more inclusive place for non-binary people. The Working Group included a mixture of staff from LGBTI+ organisations, academics with relevant expertise, and non-binary people.

In March 2022, the Working Group produced a report that presented their work and proposed 35 detailed recommendations that would help ‘make Scotland a place where all non-binary people have the resources, support, and freedom they need to live flourishing lives’.

In the report, the Working Group describe a fundamental problem for non-binary people:

Because so much of our society is based on the idea that there are only men and women, non-binary people face a lot of specific problems and need specific support. Solving these problems would often solve problems for many people who aren’t non-binary as well.

In July 2022, the Government published its response and fully accepted eight of the 35 recommendations, partly accepted 15, will consider eight in more detail and declined three recommendations. The Scottish Government has agreed to publish an Action Plan before Spring 2023, which will set out more detailed information on next steps.

Differing understandings of the ‘problem’

The Government’s response to the Working Group’s report and recommendations provides an insight into what is currently positioned as a ‘problem’ by two distinct, though related, camps: the Working Group for Non-Binary People’s Equality and the Scottish Government.

Non-binary lives were historically positioned as unfathomable, sitting outside existing institutional systems and frameworks. Issues that impacted non-binary people were not understood as ‘problems’ by those in positions of power. There is therefore a risk that when institutions attempt to bring non-binary lives into the fold some things are lost in translation.

The LGBTI human rights project Scottish Trans picked-up this issue in their commentary on the Government’s response, and noted: ‘The Scottish Government could have been more ambitious in its response to the Group’s recommendations’, expressing disappointment that ‘a lot of the Scottish Government’s response indicates that they think the issues addressed by the group will be solved by existing work the Government is doing’.

In addition, the Government fully accepted Recommendation 20 (Produce clear guidance for service providers on the gathering of sex/gender information) but understands this recommendation to have already been achieved by guidance on the gathering of sex/gender information published by the Chief Statistician in September 2021. However, in their report, the Working Group explicitly criticises the Chief Statistician’s guidance and calls for its revision (Recommendation 22).

Imagined solutions and next steps

The Scottish Government fully accepted eight of 35 recommendations, which suggests multiple sticking points between what the Working Group and the Government understand as possible solutions.

Actions that received the most enthusiastic support in the Government’s response tended to relate to reviewing existing systems, undertaking research and/or gathering more evidence, for example:

• The Office of the Chief Statistician will continually review the existing guidance to ensure that it remains fit for purpose.
• Where a gap in the equality evidence base is identified and there is a requirement to fill it, Scottish Government analysts will work closely with policy colleagues to scope options for new evidence gathering.
• The Scottish Government will therefore commission research on non-binary legal recognition and will consider the outcomes of the research to inform our view in this area.

As I have previously written about, there is a limit to how much information we require about a ‘problem’ before taking action. When enough information exists, it is vital that energy and resources shift to Step Two and use the information gathered to fix the ‘problem’ (rather than collecting more and more information about the ‘problem’, which is a far easier task).

Working Groups serve a purpose as they can represent an early step in a longer-term process of change. But they can also function as a tool to distract and deflect meaningful action. Mindful as to whether the formation of the Working Group signified the start or the end of a process to improve non-binary inclusion, the Working Group notes:

Our work here is the end of one process, but it should be the beginning of something much bigger. Improving life for non-binary people in Scotland is going to take a lot of work, but our recommendations are a good place to start.

The Scottish Government’s formation of a Working Group is a potentially positive first step: it offers a survey of the current landscape and improves the fathomability of non-binary lives in policymaking circles.

This episode also provides future clues as to what might happen when governments and other institutions begin to take action that impacts the fuller spectrum of queer lives:

• An expanded suite of issues is elevated to the status of being a ‘problem’.
• In turn, more lives are made fathomable and subsequently positioned as targets of policies, programmes, initiatives and interventions.
• Solutions to ‘problems’ that focus on gathering more information about the ‘problem’ proliferate, rather than action that focuses on fixing the ‘problem’.

Rearranging the furniture is very different to knocking down walls and pursuing an overhaul of systems that govern people’s day-to-day lives. Yet, looking forward, recent developments to improve the lives of non-binary people in Scotland offer a window as to the types of topics we are likely to navigate in future work on LGBTQ equalities.