Gender Recognition Reform (Scotland) Bill (Detailed)

The medicalisation of gender recognition, particularly the requirement for a diagnosis of ‘dysphoria’, labels trans people as requiring psychiatric diagnosis and treatment. This is not appropriate (not only because of the very long waiting lists and lengthy and complicated referral and treatment processes). Being trans is not a 'sickness'. Individuals are more attuned to their own sense of gendered self than 'experts'. As such, individuals should be able to self-identify as male, female or non-binary. Article 8 of the European Convention on Human Rights guarantees the right to private and family life, and this includes the right to be recognised in one's sex/gender. It does not require medical processes for this to occur, but leaves the issue to member states to decide how to regulate the process. It is time that Scotland followed the lead of other countries such as Ireland and Malta in recognising the human rights of trans people not to be pathologised in order to be recognised in their lived sex/gender.

While we need to move away from the pathologisation of legal gender transition, adopting a system of self-identification depathologises trans people, it does not solve the problem of long waits for referrals and for treatment for those trans people seeking to take that route, an issue that in itself needs urgent attention.

I do not think it is necessary for a person to ‘prove’ their gender identity. Self-declaration should be sufficient. I do not think it is necessary to make people wait for 3 months before they do this. Many people will have waited a long time, reflecting on their sex/gender identity, before they apply to make a declaration.

I do not believe that a declaration promising to live in that sex/gender is necessary either. It might be that in requiring this the state aims to give the idea that a change to sex/gender must be permanent, but I do not believe any aspect of human identity is permanent, and requiring people to sign such a declaration ignores this aspect of human experience. Many trans - and cis - people do not see themselves as having a shifting sense of sexed/gendered self. But some people do experience themselves in that way; in my research I have found a certain degree of flexibility in people's sex/gender identifications across their life courses between being cisgender, transgender, non-binary or gender fluid. Therefore I do not see any reason why sex/gender has to be 'locked down' for a whole lifetime 'until death'. For a long time we took the view that marriage had to be ‘until death do us part’ but we now allow for divorce. In other words, we should allow for even very significant choices to be reversed.

It seems unnecessary to enforce upon people a permanent adminstrative categorisation that does not acknowledge this. Those who want to remain in that sex/gender will do so, and those who do not, will not, regardless of such a legal declaration. Such a requirement might also inadvertently support conversion therapy treatment in the circumstances where someone wanted to re-think their sex/gender identity after signing a statutory declaration of permanent intent.

This is an uncontroversial and much needed change.

As I intimated earlier, I do not think a period of reflection is necessary as in general trans people have already given a huge amount of thought to this issue. Extending the time period only unnecessarily delays the process for trans people.

A young person aged 16 or over can consent to life changing medical treatment, get married, have consensual sex, be convicted of crimes, change their name, join the armed forces, and much more. There is no reason to think that they could not also apply for and consent to legal gender recognition.

There should be consequences for making a vexatious application in the same way as, for example, there would be for applying for a drivers licence under an a false name, but these penalities should be adminstrative in nature and not criminal (we have too much criminal law already, and I say this as an academic criminal lawyer). This is not least because - as I said earlier - there is a certain degree of flexibility in some people's sex/gender identifications across their life times between being cisgender, transgender, non-binary or gender fluid. So I would be wary of initiating a provision that risks criminalising or penalising those who apply for recognition who do not live according to society's perceptions of their 'aquired gender' or who change their minds or about their sex/gender, or who are gender fluid but require a document for some legal purpose, given that non-binary sex/gender is not recognised in all legal contexts in the UK (though it is accepted in employment law as part of the protected characteristic of gender ressignment and it is recognised as a ground of persecution under UK aslyum law).

So if it were really possible to distinguish between vexatious applications and other applications (which might appear 'false' but are simply a reflection of the instability of identity or the lack of recognition of gender fluid/non binary people) then yes, some sort of (non-criminal) penalty for those would be appropriate.

I do not think there should be a fee for changing the marker on your birth certificate as there is no fee for having it initially recorded at birth, and this record might be wrong. The applicant should not bear the cost of this. The cost to the state will be minimal as only a very small percentage of the population will apply for this.

Such as what? We must abolish the requirement for trans people to have a gender disphoria diagnosis before they can legally be recognised in their lived sex/gender, and that requirement is in the existing Gender Recognition Act, so I don't see any other way of moving away from that position without reforming legislation. It's not just about 'policy outcomes' but recognising - through the very important communicative function of the law - the rights of Scottish people to have their lived sex/gender legally recognised without the need for intrusive and pathologising diagnoses (that takes years to obtain).

I think I have made this clear in my answers to previous questions.