On 9th Nov 2017 the Scottish Government opened a consultation about reviewing the Gender Recognition Act 2004. It closed on 1st March 2018 having received over 15,500 responses, of which only 49% were from respondents resident in Scotland. In November 2018 the Government published its independent analysis of the responses, and to date have not yet reached a decision on its next steps.
What happens under the current Gender Recognition Act 2004?
The Gender Recognition Act 2004 offers people the ability to have legal recognition of their preferred gender by issuing them with a Gender Recognition Certificate, which in turn permits them to be issued with a ‘new’ birth certificate. This ‘new’ birth certificate is identical in every way to the original, with the one exception being that the Sex marker is changed to the opposite of what was originally recorded. Therefore, the UK system doesn’t just recognise that a person has legally aquired their preferred gender, it actually goes further by legally altering their sex.
(Other countries have variations on how a change of legal gender can be recognised, with some having ID cards that can be amended throughout a persons lifetime. The UK system is different we have no state issued Identification system in place, therefore to enable a complete legal gender change it was decided at Westminster that the historical document, i.e. birth certificate would be altered / re-issued.)
What is the current process for a person applying for legal gender recognition?
An applicant must submit the following to the Gender Recognition Panel:
- Two medical reports, demonstrating that they have or have had gender dysphoria, and detailing any medical or surgical treatment they have had. An applicant is not required to have had medical or surgical treatment.
- Proof that they have lived for at least two years full time in their acquired gender: for example by producing bank statements, payslips or their passport.
- A statutory declaration that they intend to live in the acquired gender until death.
Applicants must be aged 18 or over.
Applicants do not meet the Gender Recognition Panel in person, its mainly just an administrative procedure.
There is a fee of £140, although this fee can be reduced or not applied if the applicant has a reduced income.
What are the proposed changes to the Gender Recognition Act?
The Scottish Government have proposed
- Removing the requirement that applicants have a diagnosis of gender dysphoria and
- Applicants no longer need to demonstrate that they have lived in their acquired gender for at least two years.
- The current requirement that applicants must make a statutory declaration will remain
In addition to removing two of the three current requirements, the Scottish Government has also proposed that the minimum age of applicants for legal gender recognition should be reduced from 18 years to 16 years of age.
This lower age limit is viewed as controversial by many, considering that the minimum age in Scotland for a person to do the following remains at 18 years old.
- vote in UK elections.
- buy alcohol or tobacco
- place a bet
- serve as a juror in both civil or criminal cases
In addition to these proposals, what else was included within the Scottish Government consultation?
- It sought views on what options might be available for permitting children under the age of 16 years old to also apply for legal gender recognition
- The consultation also asked for views about creating an additional third legal recognition option. This would be for people who identify as non-binary, and no longer want to be legally recognised as being either male or female.
Why is the Scottish Government wanting to reform the 2004 Act?
They state their reasons are because under the current Act the application process is complicated, time-consuming and unnecessarily intrusive for applicants.
They also say they want to reform it so that it is in line with international best practice.
What does ‘international best practice’ mean?
Despite this phrase being used consistently by the Government and the LGBT organisations lobbying for these reforms, it remains unclear as to what exactly ‘international best practice’ refers to, this is especially puzzling as the UK is already amongst one of the highest ranking States in respect of transgender people’s rights, equality, education and healthcare.
In respect of one of the proposed change to the Act i.e. removing the requirement that applicants have a diagnosis of gender dysphoria, the European Court of Human Rights had considered this very point only a few months earlier on 6th April 2017. They ruled that member States have considerable room for manoeuvre for setting criterion, and there was a broad consensus amongst other member States for the requirement of a medical diagnosis of gender identity disorder before any change of legal gender recognition would be granted.
With regard to the condition of proving that one did in fact suffer from gender identity disorder, imposed by French law in order to grant requests for changing sex, the Court observed that a broad consensus existed among the member States in this area and that this criterion did not directly call into question an individual’s physical integrity. The Court concluded from this that, although individuals’ sexual identity was at stake, the States retained considerable room for manoeuvre in deciding whether to impose such a condition. It followed that the respondent State had not failed in its positive obligation to guarantee E. Garçon’s right to private life. The Court concluded that there had not been a violation of Article 8 in that connection.
Would this ruling have been known to the Scottish Government prior to them publishing their consultation paper?
Yes, this case was actually cited within the consultation paper but it made no reference to this very important point about the need for a medical diagnosis not being a violation. It was instead mentioned in relation to an entirley different finding from the court, one which had no relevance to the proposed reviews, as our current law already agrees there is no requirement for medical treatments prior to granting legal gender recognition. Further details can be read here.
What happens next?
The Scottish Government has not made a statement about the results of the consultation nor whether they will be amending any of their proposals, however, they have stated they remain committed to bringing forward legislation on legal gender recognition in the next legislative programme. It has been rumoured that an announcement will be made towards the end of June 2019.
What concerns have been raised about the proposals?
The independent analysis very clearly highlighted the many concerns that were raised by the respondents to the consultation. By removing the ‘gatekeeping’ process in the form of a medical diagnosis, and all evidence demonstrating the application is genuine, reflecting the lived experience of the applicant, respondents were concerned that the gender recogntion process could be open to abuse. Concerns raised were focused around the consequences of this possible expolitation, as can be seen in the following statements:
“The most frequently raised issue was that self-declaration may pose a risk to women’s safety in spaces including toilets, changing rooms, hospital wards and refuges. Often associated with this concern was that the proposed self-declaration system may be open to abuse, exploitation or false declarations.“
“the proposals represent a general erosion of the identity or the rights of natal women“
“Other issues raised included that the consultation paper fails to distinguish between sex and gender“
“The most frequently made point, raised by around 6 in 10 respondents, was that contrary to the partial EQIA, the proposals for self-declaration will have a profound impact on women”
“The most frequent comment was that trans rights should be protected. However, a substantial majority of those making this point added that this should not be at the expense of women’s rights.”
“it was suggested that the Scottish Government sought the views of trans organisations but has not engaged with women’s groups.“
“It was suggested that 16 and 17-year olds are often still going through puberty and may not yet be clear about their gender identity or sexuality.”
What have Scottish Government Ministers and other MSP’s been saying in response to these concerns?
The Scottish Government have not yet made an official statement about their proposals since the consultation closed in March, but comments in the media and in communications have been statements like the following:
“Under our proposed system, gender recognition would remain a solemn and important step. Making a false statutory declaration is a criminal offence, the potential punishment for which includes imprisonment for up to 2 years”
“Our consultation on reform of the 2004 Act did not propose to seek any change to the exceptions from gender reassignment discrimination, such as for sport or single sex or separate sex services like domestic abuse refuges. Equality law (including the 2010 Act) is largely reserved to Westminster.”
These are only comments on what the Scottish Government are NOT intending to change, i.e. the statuatory declaration and the Equality Act 2010, what do they say about the gatekeeping issue (why a medical diagnosis would not be needed nor proof of 2 years living as the acquired gender)?
These specific concerns have never been addressed and the only other comments we have heard have been similar to this following statement:
“It is the Scottish Government’s view that the processes outlined in the 2004 Act need reform to make them less intrusive and time-consuming”
Are these the reasons why so few people utilise the current process of obtaining a Gender Recognition Certificate? Because it’s too intrusive and time-consuming?
These are the reasons we often hear, but the UK Government National LGBT survey published in July 2018 revealed significant misunderstandings about the current Gender Recognition process which suggests greater awareness raising is needed in this area.
What is stopping people from applying for a Gender Recognition Certificate just now under the current system?
According to the National LGBT Survey many people do not feel they need to obtain a Gender Recogntion Certificate, especially as other forms of identification like a passsport or driving licence are issued without it. Others reported being unable to meet the current criteria (medical diagnosis and/or 2 year lived experience/age).
Hasn’t the new International Classification of Diseases (ICD 11) removed Gender Dysphoria and therefore being transgender is no longer categorised as a mental disorder?
A new version of ICD 11 was released in June 2018 allowing Member States to begin preparing its implementation for January 2022. Gender Incongruence has been moved out of the catogory for mental disorders and into category for sexual health conditions, this was done in the hope of removing any stigma would then enable transgender people to have their significant health care needs met.
Is a medical statement required before a passport or driving licence is re-issued in the opposite sex?
Yes, every other form of identification can have the sex marker amended without the need of a Gender Recognition Certificate. A doctor’s letter is still required, the exact content of which varies between agencies, but it basically confirms that the person is either a) transsexual b) suffers from gender dysphoria or c) plans to live permanently in their preferred gender.
As Passports and Driving Licences are issued by UK agencies could issues arise out of the different requirements depending on where in the UK a person is resident? Is there a likely occurrence of ‘Gretna Green’ GRC’s being granted?
It does appear that a level of harmonising between the Scottish and UK Governments / Departments would be needed. There is no further information available on this matter.
Is there any evidence that by making the process quicker and removing the need for supporting documents this would increase the number of applications for Gender Recognition Certificates?
What is the estimated number of people who will apply for a Gender Recognition Certificate under the proposed changes?
The Government provided estimated numbers of between 250 – 400 people applying for a GRC per year, but these numbers have came from the experiences of other countries who recently introduced a Self Declaration model. Yet it can not be a true comparison as these other countries had either had no previous legal gender recognition in existence, or a system which required compulsory medical treatments, neither of which are comparable to Scotland.
It would appear that it is already assumed that the Act is going to be changed, rather than having a consultation seeking views as to whether or not it should be changed.
Yes, it does appear that way.
Other than removing two of the three current criteria, the Scottish Government want to lower the minimum age for legal gender recognition from 18 years to 16 years old, why do they want to lower the age limit?
The consultation paper states 16 & 17 year olds are able to make a number of important life decisions without parental involvement or consent. These include:
- getting married or entering a civil partnership
- recording a change of name; and
- voting in Scottish elections.
It also stated
There is clear evidence that people aged 16 do live full time in their acquired gender and want this to be legally recognised. For example, the Women and Equalities Select Committee heard evidence from LGBT Youth Scotland to this effect.
What was the evidence heard from LGBT Youth Scotland?
Their written submission states:
“In consultations with two transgender-specific youth groups, we asked young people what changing the age of GRC to 16 would mean for them:
‘It would mean that my friends and others in my community wouldn’t have to wait so long and could be recognised as they are on a legal standing at a younger age. Meaning that their mental and physical health would improve’.
‘That legally I could have been recognised as the gender I am and be able to be exactly who I am in every life situation as soon as I was old enough to leave school’.
‘Spending an extra two years with the letters ‘M’ or ‘F’ hovering over you in an official document…when not needed is unnecessary and prohibitive to an individual’s mental wellbeing’“
Is there a link providing further information about these two consultations they had with youth groups?
No, that’s the full extent of the evidence publicly available as to why the age limit should be reduced from 18 years to 16 years old. Also, the fact that 16 year olds are deemed old and mature enough to get married in Scotland without parental consent.
What is the estimated number of 16 year and 17 year olds who will apply for a GRC if the 2004 Act is reformed by lowering the age limit?
This information is unknown.
The consultation also included options for children under 16 years old, is there evidence that supports the view that granting legal recognition to children would improve their outcomes?
There is no evidence, nor consistency on this point. There is also growing concern in general regarding the medical treatment of children referred to gender identity clinics.
Is there any evidence that supports the need for bypassing any psychological assessment of people who want legal gender recognition – especially for children under 18 years old?
This information is unknown.
Do the Scottish Government have the legislative power to create a third option of legal gender recognition?
No. There are numerous UK wide laws written on the basis of there being only two sexes and the introduction of a third option would not be consistent with them, the Equality Act 2010 for example recognises the protected characteristic sex as referring to female or male. There is no third option.
What about the concerns that self-identification would undermine the Equality Act which allows for single-sex spaces to exist.
(more details on this to follow)
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