Gender Recognition Reform (Scotland) Bill (Detailed)

Keep Prisons Single Sex was established in 2020. We campaign for the sex-based rights of women in prison to single-sex prison accommodation and same-sex searching throughout the United Kingdom. We are also concerned that data collection throughout the criminal justice system should include a mandatory requirement for data to be recorded on the basis of sex registered at birth. We have been consulted by both the Scottish Prison Service and the Ministry of Justice in our capacity as external stakeholders in relation to their respective policy reviews.

We oppose this.

This proposed reform is discontinuous with the operation of the GRA throughout the rest of the United Kingdom and closer consideration should be paid to the implications for that.

This is a significant legal change that people will be undergoing that has fundamental consequences: it enables a person to change their identity, including on their birth certificate, that includes both change of name and change of sex marker (legal gender is now recorded in lieu of sex registered at birth). This is fundamental and has significant, and unexamined, implications including for data collection across a range of areas and for safeguarding, notably DBS checks.

As such, the Bill should pay closer consideration to the legitimate substance of a person's claim to obtain legal recognition of acquired gender. What is the basis for differentiating between legitimate claims and those that should be rejected?

Gate-keeping is already minimal for the purposes of obtaining legal recognition of acquired gender. For example the Gender Recognition Panel undertakes no risk assessment meaning that offenders whose sex registered at birth is male and who are serving custodial sentences for the most serious sexual and violent offences against women and children have successfully obtained gender recognition certificates. Notwithstanding that current prison policies do not make any formal distinction between transgender prisoners with and without GRCs, where a prisoner whose sex registered at birth is male acquires a GRC, this has implications for the management, accommodation and risk assessment of that prisoner. Neither is there any requirement for surgical or medical reassignment. This means that those who are 'women in law' include those with intact and fully functioning male genitalia.

In our opinion, the implications of the present minimal gate-keeping have not been fully thought through and we oppose removing any further gate-keeping.

We oppose this.

Our reasons include those given in respect of Q 1 on the proposed removal of the requirement for a medical diagnosis of gender dysphoria.

We also note that reducing the living in the acquired gender requirement is reduced to three months may have a particularly disproportionate impactful for young teenagers. We believe that whilst the implications of reducing the time requirement have not been properly considered, this is particularly so in respect of those who are still children and in light of the existing research on chid development and decision-making at that age.

The relationship between the proposed Registrar General for Scotland and the Gender Recognition Panel must be fully examined and decided to the satisfaction of both. What will be the affect of the Registrar General for Scotland informing the GRP that a GRC has been issued? Is there the assumption that this will mean that the GRC will be recognised by the GRP and entered into the registry?

Our views on this are those expressed in relation to Q2.

We consider that this further period of reflection remains insufficient.

We oppose this.

Our views on this are expressed in relation to Q2.

We are concerned that the spousal exit clause should be retained and that any grant of an interim GRC (and subsequent grant of a full GRC) should continue to include the ability of spouses who do not consent to the having the terms of their marriage or civil partnership redefined (an opposite-sex marriage will become a same-sex marriage; a same-sex marriage will become an opposite-sex marriage) to leave the marriage or civil partnership.

The spousal exit clause is often mischaracterised as a spousal veto clause: it is no such thing.

GRA2004 considers the territorial effect of different gender recognition regimes in sections 1(2)(b) and s21. To have foreign gender change recognised in the UK an application needs to be made.

s 21 GRA2004 - Foreign Gender Change & Marriage - “A person’s gender is not to be regarded as having changed by reason only that it has changed under the law of a country or territory outside the United Kingdom.”

We oppose the proposed reforms and consider these to be ill-thought out.

Overseas GRCs will be automatically recognised in Scotland. It is proposed that the list of recognised countries applicable to the rest of the UK is repealed. At present, the countries on the current list have procedures and criteria that, broadly speaking, are consistent with the GRA. The proposal to automatically recognise any overseas GRC does away with this requirement for consistency, not only in respect of the present GRA, but also in respect of the proposed reforms. This means that confirmatory Scottish GRCs may be awarded to the recipients of an overseas GRC who would not have met the requirements for obtaining a GRC in Scotland.

The proposed exceptions to this are very limited, completely in control of the Ministers, and not spelt out.

Recognition of overseas GRC by grant of a confirmatory Scottish GRC is possible without evidence, on the basis of a statutory declaration. There is no requirement to have that overseas registration confirmed or registered. This provides a further loophole, the implications of which have not been adequately considered.

The auto-recognition of overseas GRCs will present organisations with an administrative nightmare if they are presented with foreign documentation that they may or may not be able to verify. Here we note the proposed amendments to s22: if a person claims they have obtained legal recognition of acquired gender in another jurisdiction, s22 applies. The effect of this may be that organisations become unable to question this, or at the very least believe they are unable to question it.

People obtaining auto-recognition of Scottish GRCs are not registered in any way and there is no way of monitoring/reporting the numbers. Here we note that the proposals discourage these foreign GRC holders from obtaining a confirmatory Scottish GRC and recommend that the auto-recognition route is pursued. This concerns us.


The implications for the Gender Recognition Panel and their current register have not been thought through.

We note that the proposed reforms provide for a '2 tier system' that creates a different system for non-Scottish UK citizens in Scotland: non-Scottish-non-UK citizens essentially have self-ID in Scotland (and including individuals who would not meet the proposed Scottish criteria).

The proposed reforms introduce a new offence of giving a false statutory declaration.
However, the evidential requirements are unclear. A test for an offence must be clear and objectively applicable, yet the proposed legal mechanism to enable the acquisition of legal recognition of acquired gender centres subjective feelings. How then would the courts determine if a declaration had been falsely made? What evidence could be brought?

The proposed reforms appear to treat this differently to the usual false statutory declarations under Scottish law. Clarity on this point is required, including the rationale for treating this offence differently.

The implications in the case of a person who, having obtained legal recognition of acquired gender, then wishes to 'detransition' and 'revert' to full legal recognition as their sex registered at birth have not been considered. How is this process to be managed? How does the proposed offence fit into this? What consideration has been given to whether this would act as a disincentive to them declaring that they had changed their minds? This may have particular relevance for children: has this been considered?

The fee is already minimal and we do not consider this to present any real obstacle. We do not believe that the removal of this fee will confer any real benefit.

The intended policy outcomes are unclear, other than that transgender people should have a birth certificate that matches the sex marker on their other identity documents.

In particular the effect of acquiring a GRC is unclear. It has been stated that the proposed reforms will have no impact on Equality Act 2010. If this will neither impact on the protected characteristic gender reassignment for anti-discrimination purposes, nor the operation of the separate-sex and single-sex exceptions, what are the benefits that a GRC confers? What is the benefit to making it easier to obtain a GRC? What is the impact of more trans people having this legal recognition in Scotland both for them and for other groups?

Para 19 of the Policy Memorandum says that a GRC allows you to change the ‘sex marker’ on your birth certificate and points out the current inconsistencies with other official documents where sex markers can be changed by self declaration.
Para 125 says the new process will allow trans people to ‘obtain legal rights without having to go through an intrusive and medicalised process’. It will promote their inclusion and reduce their experiences of discrimination. These claims are not explained or evidenced. These legal rights are not set out.

The proposals include the statement that non-binary gender exists. Is this attached to any present or future intended policy outcome? This is not explained.

There are unintended outcomes that we have set out in respect of previous Qs that need to be addressed.

The effect of the change of birth certificate on a self ID basis to a large group of people (and without gatekeeping) has the outcome of obscuring sex registered at birth and therefore protections for persons on that basis and the social significance of sex registered at birth. This will have a disproportionate impact on women and girls.

Sex registration at birth is a longstanding and international convention, for good reason, it is not in anyone's interest to obscure it or replace it with self identified gender, particularly without debate and scientific evidence to support for such a drastic change.

Degrading the social significance of sex registered at birth is not one of the policy objectives of the Bill, so the Bill must not unintentionally cause that to happen as it has a profound impact on society and policy-making and also the Convention rights of individuals.

1. ‘Ordinarily resident’ in Scotland is not defined and is considered on a case-by-case basis according to Scottish law, meaning that the scope of the extension and how
the changes would impact on the rest of the UK are unclear.

2. Will this reform bill allow other ‘genders’ to be included in the certificates in the future by devolved legislation? Here we note that para 36 of the Explanatory Notes states: “Section 8C(3) defines “the acquired” gender for the purposes of the 2004 Act. The acquired gender of a person who applies for a GRC is the gender they are living in when they make the application.” This does not say that the gender is either male or female as is currently the case according to GRA2004 s 9(1). What would be the
implications for this on Equality Act 2010? Would this pave the way for the Scottish Government to propose a 'new' Equality Act that incorporates other and/or non-binary genders?

3. Extension of the effect of the offence set out in s22 GRA2004 - ‘Protected Information now includes information about the person’s ‘gender before it became the acquired gender’ (as set out in the Schedule to the Bill). This will broaden the scope of s22 criminal offence of disclosing protected information in an official capacity. The Bill proposes to change the definition of ‘protected information’ in s22(2) beyond
information regarding applicants and recipients of a GRC. Under 22(2)(b) under Scottish law the definition would cover "information relating to a person… whose gender has become the acquired gender, and which concerns the person’s gender before it became the acquired gender". The scope and impact of the proposed amendment to s22 requires clarification: on the face of it, this could apply to any transgender person including those who have not obtained or applied for a GRC. Could it also extend to disclosures made in other territories or outside of Scotland but within the UK?Note our separate concerns in relation to the operation of s22 in respect of auto-recognition of overseas GRCs. The amended s22 also applies to persons with an GRC issued elsewhere in the UK under Scottish law : see new S22, (2A). Is this within the legislative competence of
Scottish Government?

In our opinion, contrary to para 121, the onerous and wide-reaching provisions of the amended s22 would have a chilling effect on freedom of speech, by criminalising reference to the truth of a transgender person’s biological sex registered at birth, in the name of their privacy. This is disproportionate and fails to consider the rights and
fundamental freedoms of others, in particular biological women in differentiating themselves from transgender people whose sex registered at birth is male on the basis of their biological differences. This has profound implications for data collection and the operation of separate-sex and single-sex services: whilst the Scottish Government may
claim that the proposed reforms will have no impact on the operation of the separate-sex and single-sex exceptions in Equality Act 2010, the practical impact of s22 may render these exceptions inoperable.

4. The Statements on Legislative Competence declare that the Scottish Government’s opinion is that the provisions of the Bill are within their legislative competence. The Scottish Government position is that the reforms they are proposing only relate to the administrative processes for obtaining a GRC and therefore are within their legislative
competence, because they change neither the effect of a GRC nor the impact on Equality Act 2010. s 17(1) of the Bill allows the Scottish Ministers to make regulations to make any incidental, supplementary, consequential, transitional, transitory or saving provision that they consider appropriate for the purpose of, in connection with or for
giving full effect to the Bill. (Could this be used to justify non-binary, agender or other gender recognition when the Scottish Government has further considered its position on this change?) Yet the provisions of the Bill have a knock-on effect elsewhere in the UK and are contrary to GRA2004. The proposals change the fundamental basis on
which a GRC can be obtained and puts Scotland out of step with the rest of the UK. We would argue that it is not within the legislative competence for the Scottish Government to impose self declaration of gender on the other parts of the UK. The gatekeeping nature of GRA2004 is fundamentally important to the operation of the GRC scheme as conceived in response to jurisdiction of the European Court of Human Rights, because the grant of a GRC impacts on others and is not simply about the personal status of any person with gender dysphoria or who otherwise identifies as ‘transgender’.

5. The Policy Memorandum, in respect of non-binary recognition at paras 113 and 114, states: “Extending policy to include legal recognition of non-binary people would have significant implications associated with the complex assessment of rights and responsibilities. It would also incur additional registration costs for National Records of Scotland.” We find it curious that extending the definition of 'women' to include
those of the male sex (and those who are currently ineligible to be included in that category) is not considered to have "significant implications associated with the complex assessment of rights and responsibilities" in respect of women (by which we mean, biological women defined on the basis of their bodily sex). Here we also note that the
impact on such women who are in possession of other protected characteristics
including disability and religion may be particularly marked.

6. Paras 134 - 142 concern themselves with Human Rights. Clearly here the Convention applies. However, it is curious that the Scottish Government chose not to consider the impact of their proposals on Art 9 (freedom of thought, conscience and religion), Art 10 (freedom of expression), Art 11 (freedom of association), Art 17 (prohibition of abuse of rights) and Art 14 (discrimination) with regard to ‘sex’ and ‘birth’. In respect of Articles 9 and 10 we note that s 22 is very limiting and does not strike the right balance between the privacy of anyone who simply declares a transgender identity in Scotland and the rest of the public. Here we also note Employment Appeal Tribunal judgement in
Forstater v CGD Europe & Others UKEAT/0105/20/JOJ. We also note the implications of R (Miller) v The College of Policing & The Chief Constable of Humberside [2020].
We are also concerned that due consideration has not been given the impact on the rights of women on the basis of their biological sex as registered at birth e.g. to freedom of association on the basis of their sex and their Art 3 rights (freedom from torture and degrading treatment). We note that Art 14 specifically mentions sex and birth, so
it would be illogical, even if the European Court of Human Rights (ECtHR) has stretched the meaning of ‘sex’ to include ‘gender identity’ and ‘sexual orientation’, that a process
could be lawful if it is potentially discriminatory against biological women and denies them the protections they have been afforded by international law e.g. CEDAW.
Our concerns in this regard persist notwithstanding the statement from Scottish Government that the proposed reforms will have no impact on the operation of Equality Act 2010 (a statement which we consider to be ill-conceived and unevidenced).

7. The two ECtHR cases referenced in the Policy Memo that lead to the GRA2004
must be considered on their facts in relation to the proposed reforms. We consider that this has not been done. These cases both related to the rights of post operative transsexuals and did not consider the impact on biological women as a category. The
assumption at that point was that the impact of State (not third party) recognition of
acquired gender, via the introduction of the concept 'legal gender', would be de minimus. These assumptions no longer apply to a group which has the potential to be much larger and beyond the control or determination of the government. This presents the strong argument for reconsideration of the balance of rights, taking into account the rights
of biological women and in recognition of the fact that the State has a duty to uphold the Convention rights of all individuals, not just those whose gender identity does not match their sex registered at birth.