Gender Recognition Reform (Scotland) Bill (Detailed)

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We believe that the law, as it currently stands under the Gender Recognition Act 2004, is sufficient in providing legal recognition and support for transgender people in Scotland. While we recognise both the serious difficulties and challenges that transgender people face in Scotland and the Scottish Government’s aim in this legislation to make their lives better, we do not believe it strikes the right balance in how it could potentially impact upon both other protected groups and transgender people themselves, and we have concerns about how the legislation would work in practice.

Removing the requirement for a medical diagnosis of gender dysphoria and supporting medical evidence would essentially create a system of “self-declaration” of gender identity. We believe this would have significant wider societal implications in how women and men relate to each other when biological sex is separated from gender identity. Three circumstances express our concern:

• Women need to have access to single-sex spaces in certain circumstances, for example rape crisis centres or women’s refuges. Separating biological sex and gender identity to the extent that the Bill infers would complicate these essential services and provisions for both transgender people and women;

• The Bill could have serious implications in how children struggling with gender dysphoria under the age of 16 are assessed and treated, if the requirement for a medical diagnosis of gender dysphoria is removed for those over the age of 16 who wish to acquire a Gender Recognition Certificate;

• Women and men are biologically different, and therefore women’s sport would be critically impacted upon if athletes who do not suffer from gender dysphoria are legally recognised as women within a sporting context.

We believe that medical evidence should be required before acquiring a Gender Recognition Certificate because the current system is sufficient in ensuring there are robust safeguards in place before life-changing decisions are taken, as well as ensuring the equally important rights of women, children and transgender people are upheld in tandem.

As the law currently stands, we believe two years is a sufficient time period for someone to live in the acquired gender before obtaining a Gender Recognition Certificate. If this is a permanent commitment for life, such a significant commitment requires this extended period of time for someone to confirm for themselves that they wish to press ahead with it – especially if the minimum age is reduced to 16, when children may not yet have fully developed.

We believe that the current system of the Gender Recognition Panel processing all applications should continue. It is an important safeguard in the journey ensuring that someone wishes to continue with this lifelong commitment, and ensures that we do not move towards a system of “self-declaration” of gender identity.

While we welcome the proposal of having a reflection period built into the legislation, we still think it is too short a time period for such a significant life decision; the current system of two years remains sufficient.

We strongly disagree that the minimum age for applicants for obtaining a Gender Recognition Certificate should be reduced from 18 to 16. Firstly, we think that this is an arbitrary age to choose, considering what one cannot legally do in Scotland until aged 17 or 18:

• Be tattooed;
• Buy alcohol and cigarettes;
• Buy or possess fireworks;
• Can still be adopted;
• Drive;
• Give blood;
• Hire a sunbed;
• Own a credit card;
• Place a bet;
• Serve as a juror;
• Stand for election;
• Vote in General Elections;
• Work behind a bar.

We are not clear what the medical and social justifications are for reducing the minimum age to 16 – a decision to change one’s gender identity is of arguably greater consequence than any of the above list.

A further example from UK legislation is the UK Government’s recent decision to legislate to change the minimum age of marriage to 18 rather than 16, in order to tackle forced marriages – with the inherent implication that 16 and 17 year olds are vulnerable in different ways to 18 year olds.

Significant bodies of research in this area suggest that many children who struggle with their gender identity through their teenage years experience it as a temporary phase rather than as a lifelong struggle. Removing the requirement for medical evidence and application to the Gender Recognition Panel would complicate young peoples’ experiences in potentially hugely damaging ways.

Furthermore, we have specific concerns as to how reducing the age to 16 would impact upon parent-child relationships, young peoples’ experience of school, and pastoral support offered by churches and youth groups.

We do not have specific comments to make on this issue with the exception of seeking to ensure that the rights of both partners within a marriage or civil partnership are upheld and that both parties are able to receive the support they need through this very difficult process.

We do not believe that a confirmatory Gender Recognition Certificate should be granted automatically for applicants who have overseas gender recognition. Each jurisdiction has their own form of gender recognition which could be significantly different to Scotland’s, and therefore each case needs to be assessed individually. Therefore the current system involving the Gender Recognition Panel is sufficient.

We have significant concerns about this aspect of the Bill; we fear that it is potentially unworkable, yet is the only barrier to stopping someone who is applying for a Gender Recognition Certificate with an underlying motive separate to any gender identity struggles (such as someone seeking to enter women’s single-sex spaces to commit a crime). Our specific points of concern are:

• How would a “false application” or “false information” be found and enforced by Police Scotland? What makes an application “false”?;

• If someone decides later in life to change back to their original gender identity, would this then be deemed a false application? This shouldn’t be criminalised, especially if the applicant was 16 at the time.

We would urge the Scottish Government to provide more clarity on this aspect of the Bill, as it is a hugely important aspect of it to get right.

We agree – there should not be a cost associated with any of these processes.

We believe that policy outcomes of improving life for those who struggle with their gender identity can be achieved in other ways – the current system of obtaining a Gender Recognition Certificate is sufficient. As Christians, we believe that everyone is made in the image of God, lovingly created. Therefore, if someone is mistreated, bullied or demeaned because they are transgender or struggle with their gender identity, this is completely wrong. Churches should be the most welcoming, loving places to everyone, no matter who they are or what they are going through. This can be done, and the struggles of gender dysphoria acknowledged, while at the same time holding to core beliefs about distinctions between female and male as good. This legislation will not end the divisions that currently exist in our society on this issue – that will only come through much more loving and respectful dialogue, creative ways forward and self-sacrifice on all sides so that both the sex-based rights of women and the acknowledgement and provision for those struggling with their gender identity can co-exist in tandem.

We recommend that the Bill be amended in several ways:

• Requiring supporting medical/tribunal evidence as opposed to a “self-declaration” system;

• Increasing the statutory declaration period of living in the acquired gender to more than three months – this is a lifelong commitment and thus requires sufficient consideration;

• Keeping the minimum age of applicants to 18;

• Amending the false application offense to make it clear what would be and what wouldn’t be considered a “false” declaration, and how it would be enforced.

Within the scope of this consultation there has been no mention of the role of parents/legal guardians, which should be considered much more comprehensively with regards to lowering the minimum age of application to 16 – especially when again considering the list above of what one cannot do in Scotland until they are 17 or 18.

For further research and a fuller explanation of our positions on these complex and sensitive issues, see our resource:

Transformed: A brief biblical and pastoral introduction to understanding transgender in a changing culture (2018). Available at:

https://www.eauk.org/resources/what-we-offer/reports/transformed-understanding-transgender-in-a-changing-culture/transformed-the-resource