The Scottish Government asked the following question during its consultation on the Review of the Gender Recognition Act 2004.
Question 1 The initial view of Scottish Government is that applicants for legal gender recognition should no longer need to produce medical evidence or evidence that they have lived in their acquired gender for a defined period. The Scottish Government proposes to bring forward legislation to introduce a self-declaratory system for legal gender recognition instead.
Do you agree or disagree with this proposal?
It was a question of such huge importance and in order to give an informed answer respondents needed to understand what was actually getting asked and reasons why we were being asked.
The consultation guide began explaining that calls for reform were initially expressed at the Westminster Women and Equalities Committee on Transgender Equality.
There were then multiple references made to the Yogyakarta Principles and Resolution 2048 Parliamentary Assembly of the Council of Europe, which I would imagine most people were, like myself, not very familiar with. If the Scottish Government were wanting to “align Scotland with the best international practice” then I would have expected instead to see recommendations from the UN Human Rights Council or the Council of Europe Human Rights Commission.
The Consultation claims that the Yogyakarta Principles set out existing international human rights law. But they have never been accepted as international standards by the United Nations and therefore aren’t binding. The consultation also says that PACE resolution 2048 “expressed concerns that requiring someone seeking legal recognition of their acquired gender to have been medically treated or diagnosed is a breach of their right to respect for their private life under Article 8 of the ECHR.” This statement is false, the resolution says no such thing, besides even if it were true it would be outwith the powers of the Assembly to make such a statement. Also a resolution isn’t a recommendation, the UK Govt response to the Women and Equalities Committee describes them as ‘ideals’.
“The independent and non-binding Non-Governmental Yogyakarta principles provide recommendations on how best to implement existing international human rights law. However, we believe that existing international and domestic legislation provides adequate protection for transgender people, and that those mechanisms already in place for ensuring effective implementation are adequate. We are committed to meeting all obligations placed upon us by international and domestic law and are party to all United Nations Human Rights conventions relevant to this area. “
Our Government is in no way obliged to follow a set of ‘ideals’ created by an independent source, a source not supported by the UN. Instead we align our laws as recommended by good practice from the Council of Europe.
The Commissioner for Human Rights was established in 1999 by Council of Europe to promote awareness of and respect for human rights in the 47 Council of Europe member states. In 2009 it produced “Human Rights and Gender Identity“. It makes recommendations for member states, the relevant ones to this point are
“3. Develop expeditious and transparent procedures for changing the name and sex of a transgender person on birth certificates, identity cards, passports, educational certificates and other similar documents;
4. Abolish sterilisation and other compulsory medical treatment as a necessary legal requirement to recognise a person’s gender identity in laws regulating the process for name and sex change;”
It even highlights the UK system as good practice in that no medical/surgical procedures are required and that a diagnosis of gender dysphoria is enough to gain legal gender recognition.
“Legal gender recognition is possible by bringing evidence of gender dysphoria before a competent authority, such as experts from the Ministry of Health (in Hungary), the Gender Reassignment Panel (in the UK)”
The following year in 2010 the Council of Europe Committee of Ministers produced recommendations for all member states on measures to combat discrimination on grounds of sexual orientation or gender identity. The relevant one on this point is
“21. Member states should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way; member states should also ensure, where appropriate, the corresponding recognition and changes by non-state actors with respect to key documents, such as educational or work certificates.”
The Council of Europe have a Short guide to legal gender recognition which is a great source of information of the European Standards, with clear recommendations and links to legal cases heard in the European Court of Human Rights.
Rainbow Europe is funded by the European Union and has the ranking of 49 European countries. They are ranked in relation to the laws and policies around discrimination, violation of rights etc on LGBT issues. The UK is fourth. At the top is Malta* who were the first to introduce Self ID. Ireland, whose Self ID laws we heard about repeatedly throughout the consultation process are way down at Number 15. I don’t know much about how this ranking process is scored but I’d say the UK being 4th out of 49 is a good reflection of the current laws and policies we have which protect the lives of LGBT people.
So, going back to the Scottish Consultation, I’d already heard a lot of criticism of it regarding the poor quality of the ‘partial’ Impact Assessment and lack of consultation with Women’s Groups when it was formulated. But I hadn’t realised that this very important legal point had been described with such deliberate dishonesty. References are made to the recent decision of the European Court of Human Rights
CASE OF A.P., GARÇON AND NICOT v. FRANCE 2017. It uses this case to describe the ‘Treatment’ model which in some countries require the person to have ‘had hormone treatment or to have been sterilised or had surgery’ prior to being issued legal gender recognition. We don’t have any of those requirements in Scotland and no one is campaigning (AFAIK) that we should. The consultation guide goes on to explain what the ‘Self Declaration’ model is, the Governments preferred option of no diagnosis being required. Yet it fails to then mention that that very same case had also held that it was not a rights violation for the Government to need proof that the person suffered from a gender identity disorder.
“In today’s Chamber judgment1 in the case of A.P., Garçon and Nicot v. France (application nos. 79885/12, 52471/13 and 52596/13) the European Court of Human Rights held:
by a majority, that there had been no violation of Article 8 of the Convention in respect of E. Garçon on account of the obligation to prove that he actually suffered from gender identity disorder and in respect of A.P. on account of the obligation to undergo a medical examination.”
This was just last year, a ruling from the European Court on Humans Rights that it was okay that proof of a diagnosis of a Gender Identity disorder is needed before Legal Gender Recognition is issued. Yet, seven months later the Scottish Government Consultation never mentions this and instead talks about ideals laid out in Yogyakarta Principles and Resolution 2048, when it knew that the highest court had ruled otherwise.
“We would be ensuring our compliance with Resolution 2048.”
Compliance? That word has no right to be in that sentence.
This consultation has got to be one the most dishonest and unbalanced papers I’ve read. It has clearly been written with the end goal in mind what with the ‘pick&mix’ of recommendations, rulings and choice of comparable countries. If the Government truly wanted to consult with individuals, groups and organisations to gain their views on this huge, ground breaking review then why did it produce a consultation of such poor quality, filled with inaccuracies and misleading statements.
How many people read through that consultation and then answered the questions with the belief that they were bringing Scotland into line with ‘International best practice’ when actually Scotland is already one of the most advanced countries in Europe for LGBT rights and protections. How many realised they were agreeing to conditions that the ECHR had ruled against? I’ve read through many of the responses from organisations and I’m shocked at the number who have mentioned the Yogyakarta principles and Resolution 2048 in their answers. A clear indication that respondents had based their answers on what was stated within the consultation paper. The Government should not continue down this process of reforming the Bill based on the duped responses it received.
We need our elected representatives to stop sitting on the fence and speak up about this. Their silence and lack of action are the reasons why our country is in this position. We have reached the point where we house rapists in women’s prisons, major political parties disregard safeguarding measures for fear of being labelled bigots and now we are on the brink of giving away all the sex based rights that half the population depends on.
The time to take action is now!
*(Malta were also responsible for bringing Resolution 2048 to the Assembly, which was obtained with 68 votes out of the 103 parliamentarians who voted. PACE has 318 members, this was passed with only 21% in favour of it.)
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