1. Support for improvements to the current process for obtaining legal gender recognition
We would like to reiterate our strong support for the proposals in the Bill that would introduce significant improvements to the process of obtaining legal gender recognition for trans men and trans women. These are the proposals to remove the requirement for a psychiatric diagnosis and intrusive medical evidence, for a person to have been living in their ‘acquired gender’ for two years, and for applications to be scrutinised by the GRP, as well as lowering the age at which people can apply to 16.
Obtaining a GRC is the process by which the Scottish Government legally recognises that a trans man or trans woman is living in society as a man or a woman. It is not a process that gives trans men or trans women permission to do so. It puts beyond doubt how a trans man or trans woman is viewed by the state and the law. Trans men and trans women are already able to access partial recognition of their gender without obtaining a GRC, for example by updating the sex marker on other identity documents such as their driving licence or passport. The existing Gender Recognition Act 2004, and this Bill, mandate the requirements for changing the sex marker on a birth certificate.
Trans men, trans women and non-binary people are able to socially transition—taking steps such as changing their names, updating other identity documents (such as a passport, driving licence, and NHS medical records) and coming out to friends, family and at work—before obtaining legal gender recognition. They are also lawfully able to use single-sex services and spaces that correspond with how they are living, regardless of whether or not they have obtained a gender recognition certificate.[54]
For those trans people who want to access trans specific healthcare, and undergo medical interventions as part of their transition, they are also able to do this before obtaining legal gender recognition. The Bill will have no impact on trans people’s existing rights to take other social, medical, and legal steps to live in society in accordance with their gender. It will also not create any new rights for people to do so.
That legal gender recognition is about recognising how someone is already living in society, rather than granting them permission to do so, is clear from the requirements that exist in the current process. It is also clear from the original ruling of the European Court of Human Rights that required the UK to implement a legal gender recognition process for trans men and trans women, which stated: “the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.”[55]
A process of legally recognising trans men and trans women has existed in Scotland since 2005, following the passing of the Gender Recognition Act 2004 on a UK-wide basis. We welcome that the Gender Recognition Reform (Scotland) Bill will reform the process by which this recognition is possible, and acknowledge and agree with the statement in the Policy Memorandum at paragraph 59 that: “it does not change the effects of a GRC and the rights and responsibilities which a person has on obtaining legal gender recognition.”[56]
2. A “person who has an interest”
New Section 8S, in Section 9 of the Bill, which covers revocations of a GRC after applications to the sheriff states:
“(1) A person who has an interest in a gender recognition certificate may apply to the sheriff for the revocation of the certificate on the ground that—
(a) the Registrar General for Scotland issued the wrong type of gender recognition certificate under section 8E,
(b) the application for the certificate was fraudulent, or
(c) the person to whom the certificate was issued was incapable of—
(i) understanding the effect of obtaining the certificate, or
(ii) validly making the application for the certificate.
(2) A person who has an interest in a confirmatory gender recognition certificate may apply to the sheriff for the revocation of the certificate on the ground that the application for the certificate was fraudulent.”
Similarly, new section 8P, which covers instances where a court needs to reach a decision about overseas gender recognition, includes:
“(2) A court may make an order determining the question mentioned in subsection (1)—
(a) where the question arises in the course of civil proceedings before the court, or
(b) on an application being made to the court by a person who has an interest in the question.”
The Bill’s Explanatory Notes state that examples of a “person who has an interest” include a “spouse, civil partner or child of a person who has obtained a GRC”. It is unclear which other family members, for example parents or siblings, would also be included.
This is different from the rule under the existing Gender Recognition Act (section 8) which provides that only the spouse / civil partner, and the Secretary of State, can apply for revocation of a GRC[57] .
We agree that it should be possible for the court to revoke a GRC, and that the grounds outlined in section 8S would all be fair and reasonable ones on which to do so. We also agree that there may be limited circumstances in which a court needs to come to a decision about whether overseas legal gender recognition should be recognised in Scotland.
However, it is important that new section 8S cannot be used by individuals to make frivolous or vexatious applications to the sheriff to revoke a trans person’s GRC. Such a process might be used by an unsupportive family member, or an ex-spouse, to cause greater difficulty and distress for a trans person whom they would prefer had not obtained legal gender recognition. It is important that any process by which an individual could apply to have another person’s GRC revoked is sensible and limited in who would be considered “a person who has an interest in a gender recognition certificate”.
Although social attitudes are improving, there is still a significant minority of people who hold negative attitudes about trans people. For example in the Scottish Social Attitudes Survey 2015, 32% of people said they would be unhappy or very unhappy if a close family member married or had a long term relationship with a person who had undergone gender reassignment surgery[58] . Polling by YouGov in 2021 found that 12% of Britons would not be supportive if their child, sibling or close family member came out as trans or non-binary.[59] It is therefore crucial that new section 8S cannot be used by people who object to someone having obtained legal gender recognition, simply because they disagree with the person’s choice, to force that person to go to Court to prove that their application was not fraudulent.
There are campaign organisations that disagree with this bill, and in some cases, with the concept of gender recognition itself, and we are concerned that an organisation might seek out, and possibly fund, cases where a family member is willing to take a trans family member to court to challenge their GRC.
In the World Professional Association for Transgender Health’s 2017 statement on identity recognition, they note that “court and judicial hearings can produce psychological, as well as financial and logistical barriers to legal gender change, and may also violate personal privacy rights or needs”.[60] The effects on the mental and physical health of a trans person must be considered as part of any investigation, hearing, or review of their application for a GRC if its legitimacy is questioned by another party.
We are particularly concerned that in order to defend themselves from a claim of having made a fraudulent application, that trans men and women may be forced to provide evidence to a Court demonstrating that they have not done so over and above the requirements for obtaining a GRC set out in the Bill. This might include evidence required under the current law, such as a psychiatric diagnosis, or medical reports detailing any medical interventions they have had as part of their transition. This would fundamentally undermine the purpose and provisions of the Bill.
We also note that the person whose GRC is being challenged may incur very substantial costs defending it in court, and may be unable to afford the defence. This is in addition to the likely high emotional cost.
Finally we note that new section 8S as it stands may tend to encourage people in families where there is a difference of opinion about a family member being trans, to take their trans family member to court, and this is contrary to the generally accepted approach of encouraging settlement of family disputes outwith court.
We therefore think that the right to apply to court to revoke a person’s GRC should be limited to the Registrar General and the spouse / civil partner of the person, as in the existing legislation, and that new section 8S in section 9 of the bill should be amended accordingly.
3. The requirement that applicants for a GRC must be ‘ordinarily resident’ in Scotland
New Section 8A(2)(b) in Section 2 of the Bill requires that a person be “ordinarily resident” in Scotland if they are not the subject of a birth register entry. Asylum seekers are not considered to be legally resident in Scotland when awaiting a decision on their application for refugee status or for some other form of leave to remain. This is likely to mean that they would not pass the threshold of being considered ‘ordinarily resident’ in Scotland.
We think that a specific provision is needed in the Bill to ensure that trans asylum seekers, refugees, and other people awaiting a decision for some form of leave to remain can apply for legal gender recognition.
Many trans asylum seekers have left a country of origin where they were unable to access any legal gender recognition process[61] , and indeed may have suffered persecution on account of their gender identity. Trans asylum seekers may be housed in asylum support accommodation or detention centres that don’t match their gender identity, due to arriving in Scotland with identity documents from their country of origin that reflect their assigned sex at birth[62]. They may have been unable to change their documents due to a process not existing in their country of origin, or because they would have faced discrimination and harassment for doing so. They may have status as an asylum seeker for several years in Scotland, while they are awaiting a decision about their right to remain.
It is therefore vital that asylum seekers in Scotland are able to access the legal gender recognition process, as this may assist them in being housed correctly and in obtaining documents in Scotland that reflect their lived identity and not the information on their documents from their country of origin.
As many trans asylum seekers will be in Scotland as a result of experiencing transphobic persecution in their country of origin, it is crucial that these experiences are not exacerbated by being unable to access the process of legal gender recognition upon arrival. Staff working with asylum seekers should be provided with information on the new process in order to be able to support trans asylum seekers to make an application where appropriate.
Of course, it should never be a requirement that a trans asylum seeker has legal gender recognition to be housed in a facility that corresponds with their gender identity. Many trans asylum seekers will arrive without legal gender recognition from their country of origin, and it may take weeks for them to access a legal gender recognition process, during which time they may face discrimination and violence in asylum support accommodation or detention centres[63]. However, the policy on the housing of trans asylum seekers is outside of the scope of this consultation.
Despite the fact that we would strongly oppose legal gender recognition being a requirement for trans asylum seekers arriving in Scotland, we think it is important that the Scottish Government considers how the use of a requirement that people be ‘ordinarily resident’ in Scotland if they do not have a Scottish birth or adoption certificate may exclude certain groups from being able to apply for legal gender recognition.
An example of this sort of provision in existing legal gender recognition legislation around the world is in section 8 of the Maltese Gender Identity, Gender Expression and Sex Characteristic Act 2015: “(8) A person who was granted international protection in terms of the Refugees Act, and in terms of any other subsidiary legislation issued under the Refugees Act, and who wants to change the recorded gender and first name, if the person so wishes to change the first name, shall make a declaration confirmed on oath before the Commissioner for Refugees declaring the person’s self-determined gender and first name. The Commissioner for Refugees shall record such amendment in their asylum application form and protection certificate within fifteen days.”[64]
Although legal gender recognition in Malta is generally only open to citizens, this provision was included to ensure that refugees and asylum seekers could access it as well. We urge the Committee to explore with relevant expert organisations who specialise in the law in this area in what way a provision could be added to the Bill to ensure that refugees and asylum seekers in Scotland have access to legal gender recognition.
4. Recognition of gender recognition obtained outwith the United Kingdom
We also largely support new section 8N (that would be inserted by section 8 of the Bill) to automatically recognise legal gender recognition obtained overseas, unless this is “manifestly contrary to public policy”. At the moment, only those who have obtained legal gender recognition from a place listed on the “Approved Countries or Territories” list are able to have their legal gender recognition automatically recognised here, otherwise they have to apply via the overseas track [65]. This section would make it significantly fairer and simpler for trans men and trans women who had obtained gender recognition overseas to have certainty about being legally recognised in Scotland.
However, new Section 8N(3)(a) at Section 8 of the Bill states that: “’overseas gender recognition’ means gender recognition obtained in a country or territory outwith the United Kingdom which resulted in a person’s gender under the law of that country or territory becoming male instead of female, or female instead of male.”
In other areas of law, “manifestly contrary to public policy” doesn’t necessarily mean that Scots Law does not recognise any types of legal status acquired outwith Scotland that would not have been granted here. For example, Scots Law recognises overseas polygamous marriages as marriages for some purposes.
New Section 8N(3)(a) at Section 8 of the Bill would mean that a non-binary person, who had obtained legal recognition of their gender identity in another jurisdiction, would not be able to have their gender identity recognised in Scotland. Where a non-binary person was arriving in Scotland having already obtained legal gender recognition of their identity, and perhaps only with identity documents recording and recognising them as non-binary, this could present challenges for an individual in terms of clarity about their legal rights and treatment in Scotland. We are often contacted by trans people around the world who are planning to move to Scotland, with requests for information about their ability to be legally recognised when they are living here. It would be useful to understand how a non-binary person arriving in Scotland who had already obtained legal gender recognition would be treated for legal purposes, and ensure that accurate and accessible information was available to people intending to move here.
Similarly, there are a number of jurisdictions that recognise trans children and young people who are under 16. It would be useful to understand whether recognising such children and young people would be considered “manifestly contrary to public policy”. Whilst the mechanism for making such decisions by a Court is outlined in new section 8P of Section 8 of the Bill, many families would benefit greatly from understanding whether or not their trans child would be recognised if they were to move to Scotland having already obtained legal gender recognition overseas.
5. Accessibility
Along with the proposed reforms, we would welcome a platform for individuals to apply for a GRC online. This would also require a parallel paper application for those unable to apply digitally, and provisions for applicants to provide both digital and physical evidence for those without access to printers or scanners.
A simple digital and paper application process would allow trans people to apply for a GRC with the relative ease, and make it less likely for them to run into issues with incongruent identity documents.
This should also be accompanied by accessible information about how to fill in an application available in multiple formats and languages, including community languages, braille, Easy Read, BSL, etc. These are essential to ensuring that disabled trans people also have access to legal gender recognition.
Similarly, there should also be provisions for individuals struggling with their application to request support, and these should be especially sensitive to those under 18 who may be applying without the support of their parent or guardian.
Simple explainers in a range of formats on the application process, what a GRC means, and how it could be used would also be helpful in ensuring that applicants fully understand the process, know what to expect, and can communicate it to others.
6. Legal recognition for non-binary people
Unlike for trans men and trans women, there is currently no process for non-binary people to apply to have their gender legally recognised. This means that non-binary people are unable to get their birth certificates changed to reflect their gender identities. It also means that in the eyes of the law they are either a man or a woman – despite them knowing that this is not an accurate reflection of the way they feel about their own identity.
We are very disappointed that the Bill does not include reform of the Gender Recognition Act 2004 in a way that would result in the legal recognition of non-binary people. The reasons given for this by the Bill’s EQIA are: “The Scottish Government considers that legal recognition of non-binary people would raise a number of issues in relation to areas such as registration, data, rights and responsibilities, changes to legislation, service delivery and costs.”
The process to obtain legal gender recognition currently available to trans men and trans women was introduced in the UK as a consequence of a ruling by the European Court of Human Rights. This ruling stated that not being able to have your gender legally recognised is a breach of your Article 8 right to a private life.[66]
In making that decision, part of the court’s ruling was: “The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance… No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.”[67]
In the twenty one years since that ruling was made, huge progress has been made in in the way that trans people are treated, understood, and provided with legal protections, in Scotland and beyond. However, a continued lack of recognition of non-binary people leaves them in the exact position that trans men and trans women were in before this ruling and the subsequent introduction of the Gender Recognition Act 2004, with no way to be legally recognised as who they are. Although extending legal gender recognition to non-binary people will undoubtedly have consequences for other areas of legislation, this reflects the situation when the case of Goodwin vs UK was taken to the European Court of Human Rights. We feel that similarly to the ECtHR decision in that case, the right to be recognised and ‘live in dignity and worth’ outweighs these other considerations.
The Yogyakarta Principles 2006 assert how crucial a right to gender identity is for all individuals: “Everyone has the right to recognition everywhere as a person before the law…Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”[68] (emphasis added)
The Council of Europe’s Parliamentary Assembly Resolution 2048 also calls on member states to “consider including a third gender option in identity documents for those who seek it” in the Resolution’s section on legal gender recognition.[69]
Furthermore, the World Professional Association for Transgender Health updated its statement on legal gender recognition in 2017, where it called for numerous best practice approaches to be taken, including recognising non-binary people: “WPATH recognizes that there is a spectrum of gender identities, and that choices of identity limited to Male or Female may be inadequate to reflect all gender identities. An option of X, NB (non-binary), or Other (as examples) should be available for individuals who so choose.”[70]
In 2018, the UN Independent Expert on protection against violence and discrimination on the basis of sexual orientation and gender identity recommended that legal gender recognition procedures should: “Acknowledge and recognize non-binary identities, such as gender identities that are neither “man” nor “woman””.[71]
By only allowing people to be recognised as a man or a woman, current legislation implies that other gender identities – non-binary identities – are less valid and less valued than these. It also means that non-binary people do not have the same access to their right to be recognised as who they are as all other people in Scotland, and in keeping with human rights principles.
Argentina, Iceland, Malta, Colombia, Alberta, British Columbia, Newfoundland and Labrador, Northwest Territories, Nova Scotia (Canada), California, Nevada, New Jersey, New York City, Oregon, Washington State (USA), New Zealand, Tasmania (Australia) and Uruguay all allow non-binary people to be recognised legally on their birth certificates. By excluding non-binary people from this Bill, the proposed legislation will be far from world-leading.
The Scottish Government has indicated that it accepts that non-binary people are living in Scotland, and that they may face particular issues and inequalities – this can be seen by the Scottish Government establishing a working group on non-binary people’s equality, which made recommendations to Scottish Ministers about how to improve non-binary people’s equality and inclusion in Scotland in March 2022.[72] We understand that the publication of those recommendations, alongside the Scottish Government’s response, is imminent.
Similarly, other political parties in Scotland have indicated their understanding that non-binary people are a part of the trans community, and that they face discrimination and barriers – with the Scottish Greens, Scottish Labour and Scottish Liberal Democrats having included manifesto commitments for the 2021 Holyrood Election to legally recognise non-binary people.[73]
In paragraphs 113 – 117 of the Policy Memorandum, the Scottish Government elaborates on its decision not to extend legal gender recognition to non-binary people at the current time through this Bill[74] . We agree that to do so would likely result in the things outlined, e.g. an increased cost to NRS, and the need for consequential amendments to devolved and reserved legislation. Whilst we agree with the assessment laid out in these paragraphs around the consequences of legally recognising non-binary people, the current situation means many of these complexities are already present for non-binary people themselves. Non-binary people have to navigate a society, legal system, services and workplaces, and use identity documents that almost exclusively require them to be seen and treated as male or female, when they are neither of these things.
The Scottish Government has indicated through the introduction of this Bill and the provisions included within it that it has reached a position where it believes that trans men and trans women should be able to have their gender identity recognised legally by a self-declaratory system, underpinned by human rights principles. We feel that in using these principles, it should and must follow that a system of legal gender recognition that truly delivers for all trans people in Scotland must include legal gender recognition of non-binary people as well. All of the difficulties that can be encountered by trans men and women due to not having a birth certificate that reflects how they live their lives, and all of the human rights arguments in favour of allowing trans men and women to be recognised legally on the principle of self-determination, apply equally to non-binary people.
We would therefore like the Committee to explore the possibility of an amendment to the Bill that would require Scottish Ministers to fully scope how we can move forward from the current impasse.
The previous Scottish Government announced their intention not to provide legal gender recognition to non-binary people in June 2019[75] . Whilst the Working Group on Non-Binary People’s Equality has subsequently completed their work and made recommendations, this was within the context of that announcement, and on the understanding that Scottish Ministers would reject a recommendation to introduce non-binary legal gender recognition. Whilst we understand that those recommendations are likely to shape the commitment to developing a non-binary action plan by 2023[76] , we are concerned that there will be an ongoing situation where consequences of providing non-binary people with legal recognition are raised as a barrier to doing so, without adequate attention and resource paid to how to remove those barriers.
We consider that this could be done by inserting provisions in the Bill requiring Scottish Ministers to undertake this work, and for this to be commenced within two years of the Bill coming into effect. Across Europe, a range of methods have been taken to better understand how to move forward in this area. For example in Ireland, the Irish Gender Recognition Act 2015 required ministers to commence a review into the operation of the Act no later than two years after it came into operation, with this review going on to focus on whether non-binary people should also be included[77][78]. In Belgium, the Government commissioned an expert report in this area[79] .
7. Applicants under the age of 16
There are no provisions in the Bill to allow trans children and young people under the age of 16 to have their gender legally recognised. While we strongly support the provisions in the Bill to allow applicants who are 16 and 17 to apply for legal gender recognition, we would also welcome an amendment to the Bill which would allow those under 16 to also apply with parental consent.
We think it is vital that people under 16 have access to the legal gender recognition process. An Amnesty International report into legal gender recognition processes across Europe states that “Absolute denial of legal gender recognition to individuals under a given age is not consistent with existing international standards regarding the rights of children.”[80]
In 2018, the UN Independent Expert on protection against violence and discrimination on the basis of sexual orientation and gender identity recommended that legal gender recognition procedures should: “Ensure that minors have access to recognition of their gender identity” and said that “Many States assume that children are not able to consent to gender recognition procedures. Children are thus often de jure and de facto excluded from gender recognition with the corresponding heightened risk of persecution, abuse, violence and discrimination.”[81]
Extending the right to obtain legal gender recognition to those under 16 would also be in keeping with many of the principles of the United Nations Convention on the Rights of the Child, including articles 2, 3, 6, 8, 12, 14, 16, and 28.
Countries operate a range of different models for allowing under 16s to obtain gender recognition: some with parental consent, some through a court process, some through a capacity model, and some through selecting a designated person to apply on the child’s behalf. Jurisdictions that have some mechanism of recognising under 16s include: Argentina, Australia (Tasmania), Belgium, Canada (Alberta, British Columbia, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Yukon), Iceland, Luxembourg, Malta, New Zealand, Spain (Andalucia), Switzerland, United States (California, Montana, New Jersey, New York State, Nevada, Oregon, Washington State) and Uruguay.
Allowing trans young people under the age of 16 to have their gender legally recognised is not about access to medical treatments. Decisions about the medical treatment of young trans people would continue to be made by medical professionals, and would not be affected. Instead, providing a mechanism for under 16s is about enabling consistency in people’s legal documentation, and allowing them the same recognition of their identity as everyone else, and not denying them access to their legal right to recognition of their identity exclusively on the basis of their age.
In Scotland, children and young people under 16 cannot access any irreversible treatments as part of a medical transition, such as cross sex hormones. Children and young people under 18 cannot access surgical interventions. Furthermore, healthcare providers are not obliged to provide people with medical interventions as a result of them having obtained legal gender recognition. Amending the Bill to provide a mechanism for under 16s to have their gender legally recognised would have no impact on how decisions are taken about individual trans patients’ medical transitions.
Whilst it is undoubtedly true that under 16s would require support to be able to apply for legally recognition, it is important to stress that under 16s are not necessarily uncertain of their gender identity. A small number of trans children and young people, living in Scotland, are very confident and certain of their gender - they have fully socially transitioned with the support of their family, peers and school, and will be living confidently and permanently in their gender identity. These young people should have access to legal gender recognition.
We would not think it was appropriate for anyone, regardless of their age, to obtain legal gender recognition if they were uncertain of their gender identity. A person should only apply for legal recognition when they are confident and settled in their gender, and when they feel sure that they will be living permanently as a man, woman or non-binary person. However, we think that the requirement that someone must sign a statutory declaration in front of a notary public, which declares your intention to live in your gender until death – is a proportionate and suitable way of ensuring that anyone who is experiencing uncertainty will not apply.
A small but increasing number of trans young people in Scotland are able to be open about their gender identity and live happy, healthy lives with the support of their parents, families and peers. At the moment, even those young people who have been living for many years as themselves, who are accepted by their families, and who go along to school expressing themselves in the way that they feel most comfortable, are unable to have their gender identity legally recognised on their birth certificate. With their parent’s consent they can already change their gender on their medical records and passport, but their birth certificate remains stuck in their old gender which causes them significant distress and inequality.
Children and young people are less likely to have other forms of ID, so may be more reliant on showing and using a birth certificate to demonstrate who they are. Because they are unable to update their birth certificates, this may mean having to use it despite it conflicting with their gender identity, their other identity documents and the reality of their daily life. This can mean that trans children and young people have little privacy around their trans status, and are rarely able to decide for themselves if they share this with organisations or services.
Similarly, there may be uncertainty about how they should be treated in some situations, due to a discrepancy between how they are living and the sex recorded on their birth certificate. For example, some decisions about eligibility for welfare payments may be dependent on whether a child is recorded as male or female on their birth certificate. Because trans young people are able to socially transition, and update all other records and documents, their inability to gain legal gender recognition can leave them in an unacceptable legal limbo for years.
We think that requiring applicants under 16 to have parental consent will bring the process of legal gender recognition in line with many of the other administrative changes that trans young people can make at that age, such as changing their passport, medical records, and name. This would mean that the process for under 16s would mirror the process for adults introduced by the provisions in this Bill; that legal gender recognition becomes a decision subject to the same processes as those for updating your other identity documents. In the case of trans adults this would mean being able to do so simply by self-declaration, and in the case of trans young people and children under 16 this would mean being able to do so with parental consent. If a trans person under 16 did not have a parent with parental rights and responsibilities, then somebody else with parental rights and responsibilities should be able to make the application.
We think that a parental application should require the person making the application to sign a statutory declaration which includes that they have a solemn and true belief that the young person has an intention to live in their gender identity. We would want the application to be made with the best interests and wishes of the child having been taken into account, and the wording of the statutory declaration should make this clear.
However, we do think that there should also be a process in place for those young people who wish to obtain legal gender recognition where there is some kind of dispute about whether or not there is parental consent. This will ensure that they are able to have their gender legally recognised if this is in their best interests. It is our understanding that at the moment, if a young person under 16 did not have parental consent for their application, they could apply to the Sheriff Court for the need for parental consent to be dispensed with, under the provisions of Section 11 of the Children (Scotland) Act 1995.[82]
8. What the Bill doesn’t do
The ongoing policy and public discussions about Gender Recognition Act reform, which have been underway in Scotland since late 2017, have often included discussion of issues related to how trans people are treated by services and participate in public life over and above what is related to legal gender recognition. Whilst not exhaustive, below is some discussion of the most frequently raised areas of discussion.
a) How trans people can access single or separate- sex services
The law that allows for the provision of single or separate- sex services is the Equality Act 2010. There are exceptions in the Equality Act 2010 that allow services to be provided separately to men and women, or only to either men or women, if they meet certain criteria[83] . Without these exceptions, providing single or separate- sex services would be unlawful (because it would be treating either men or women less favourably on the basis of their sex, which is prohibited).
There is an additional exception in the Equality Act 2010 that allow single- or separate sex service providers to treat trans people less favourably if it is a proportionate means of achieving a legitimate aim[84] . No single or separate- sex service is required to use this exception, and many such services have been operating in a trans inclusive way, with trans men accessing men’s services and trans women accessing women’s services, successfully for a significant number of years in Scotland.
In the Equality Act 2010, a trans person is a person with the protected characteristic of “gender reassignment”. The protected characteristic is held by anyone who is:
“proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”[85]
The law says that anyone who has the protected characteristic is a ‘transsexual’. The definition makes it clear that in order to have the protected characteristic, a person does not need to have undergone any gender reassignment medical treatments, or to be under medical supervision. Social and legal aspects of changing your sex count as well (in the definition, called ‘other attributes of sex’).
It also makes it clear that a person has the protected characteristic from the point that they are proposing to make these changes – not only at the point that those changes are occurring or have occurred.
This means that everyone who qualifies for a GRC under the existing GRA, and everyone who would qualify for one under the GRA as amended by this bill, would already have the protected characteristic of gender reassignment before they can apply for their GRC, and they would continue to have the protected characteristic after the GRC is granted. In other words, having a GRC or not makes no difference to whether a person has the gender reassignment protected characteristic. Changing the arrangements for obtaining a GRC will not change who has the gender reassignment protected characteristic, and so will not change who is protected, or the extent to which they are protected, under the Equality Act 2010. It will not change the operation of the exceptions that allow single-sex services to treat trans people less favourably where that is a proportionate means to a legitimate aim, and it will not change who those exceptions apply to.
b) Prisons
The Scottish Prison Service’s gender identity and gender reassignment policy[86] outlines how they will treat trans people in custody. Individual decision-making, based on risk assessment, is used to decide whether a trans person is held in the male or female estate, with the safety of the trans person and other people in custody central to that decision-making process.
Having a Gender Recognition Certificate does not guarantee any individual trans person in custody the right to be held on the estate corresponding to their acquired gender. A trans woman with a Gender Recognition Certificate, and female on her birth certificate, is not guaranteed the right to be held on the female estate. A trans man with a Gender Recognition Certificate, and male on his birth certificate, is not guaranteed the right to be held on the male estate. Changing the process by which someone can obtain a GRC therefore will not impact decision-making about how individual trans people in custody are held in the prison estate.
c) Sport
Since the Gender Recognition Act 2004 was passed, there have been specific provisions, originally in the GRA[87] , and subsequently in the Equality Act 2010[88] , allowing trans people to be treated differently in gender-affected activity (activities where the average differences between men and women would lead to disadvantage in competition) if this is necessary to guarantee fairness or safety.
The provisions in the Equality Act 2010 relating to how trans people can be treated in sports relate to all people with the protected characteristic of gender reassignment – which will include all trans people who have obtained a Gender Recognition Certificate, as well as many trans people without a GRC. Changing the process by which someone can obtain a GRC therefore will not impact how individual trans people are able to participate in sporting competition.
d) Access to medical treatments
Decisions about accessing medical transition treatments are clinical decisions, made between individual trans people and their healthcare providers. Having a Gender Recognition Certificate does not enable a trans person to override a clinical decision made about their care, or guarantee them access to particular medical interventions. Changing the process by which someone can obtain a GRC therefore will not impact on individual trans people’s access to medical treatments.
Footnotes
[54] See the Services, public functions and associations Statutory Code of Practice guidance on trans people and single-sex services, pages 197–199: https://www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf
[55] European Court of Human Rights “Case of Christine Goodwin v. United Kingdom” accessed at http://hudoc.echr.coe.int/eng#{"fulltext":["\"CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM\""],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-60596"]}
[56] Gender Recognition Reform (Scotland) Bill Policy Memorandum: https://www.parliament.scot/-/media/files/legislation/bills/s6-bills/gender-recognition-reform-scotland-bill/introduced/policy-memorandum-accessible.pdf
[57] Gender Recognition Act 2004 Section 8: https://www.legislation.gov.uk/ukpga/2004/7/section/8
[58] Scottish Social Attitudes 2015: attitudes to discrimination and positive action: https://www.gov.scot/publications/scottish-social-attitudes-2015-attitudes-discrimination-positive-action/pages/4/
[59] International Survey: how accepting would Britons be of a family member coming out? Eir Nolsoe, 31st August 2021: https://yougov.co.uk/topics/international/articles-reports/2021/08/31/international-survey-how-supportive-would-britons-
[60] World Professional Association for Transgender Health’s statement on identity recognition (2017): https://www.wpath.org/media/cms/Documents/Web%20Transfer/Policies/WPATH%20Identity%20Recognition%20Statement%2011.15.17.pdf
[61] TGEU “Legal Recognition Toolkit” https://tgeu.org/wp-content/uploads/2017/02/Toolkit16LR.pdf
[62] UKLGIG and Stonewall “No Safe Refuge” https://uklgig.org.uk/wp-content/uploads/2017/03/no_safe_refuge.pdf
[63] Ibid
[64] Maltese Gender Identity, Gender Expression and Sex Characteristics Act 2015: https://tgeu.org/wp-content/uploads/2015/04/Malta_GIGESC_trans_law_2015.pdf
[65] The Gender Recognition (Approved Countries and Territories) Order 2011 https://www.legislation.gov.uk/ukdsi/2011/9780111510810
[66] European Court of Human Rights “Case of Christine Goodwin v. United Kingdom” accessed at http://hudoc.echr.coe.int/eng#{"fulltext":["\"CASE OF CHRISTINE GOODWIN v. THE UNITED KINGDOM\""],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-60596"]}
[67] Ibid
[68] The Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity
[69] ‘Council of Europe Parliamentary Assembly Resolution 2048 on discrimination against transgender people in Europe’, 2015: https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=21736
[70] World Professional Association for Transgender Health’s statement on identity recognition (2017): https://www.wpath.org/media/cms/Documents/Web%20Transfer/Policies/WPATH%20Identity%20Recognition%20Statement%2011.15.17.pdf
[71] Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity A/73/152 (2018): https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/220/41/PDF/N1822041.pdf?OpenElement
[72] Scottish Government Working Group on Non-Binary People’s Equality: https://www.gov.scot/groups/non-binary-working-group/
[73] Equality Network webpage “Holyrood manifestoes 2021-2026 – what the parties are saying on LGBTI equality issues”: https://www.equality-network.org/holyrood-manifestos-2021-26-what-the-parties-are-saying-on-lgbti-equality-issues/
[74] Gender Recognition Reform (Scotland) Bill Policy Memorandum: https://www.parliament.scot/-/media/files/legislation/bills/s6-bills/gender-recognition-reform-scotland-bill/introduced/policy-memorandum-accessible.pdf
[75] Statement by Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville to the Scottish Parliament: https://www.gov.scot/publications/statement-gender-recognition/
[76] Scottish Government and Scottish Green Party Draft Shared Policy Programme: https://www.gov.scot/binaries/content/documents/govscot/publications/agreement/2021/08/scottish-government-and-scottish-green-party-shared-policy-programme/documents/scottish-government-and-scottish-green-party-draft-shared-policy-programme/scottish-government-and-scottish-green-party-draft-shared-policy-programme/govscot%3Adocument/SG%2BSGP%2BTalks%2B-%2BDraft%2BPolicy%2BProgramme%2B-%2Bversion%2B7%2B-%2BFINAL%2B-%2BOFFSEN.pdf?forceDownload=true
[77] Irish Gender Recognition Act 2015 Section 7: https://www.irishstatutebook.ie/eli/2015/act/25/section/7/enacted/en/html#sec7
[78] Irish Government Department of Social Protection Review (under section 7) of the Gender Recognition Act 2015: https://www.gov.ie/en/consultation/001721-review-of-the-gender-recognition-act-2015/
[79] See e.g. Emmanuelle BRIBOSIA, Isabelle RORIVE and Hania OUHNAOUI, Rapport au sujet de l’arrêt n° 099-2019 de la Cour constitutionnelle du 19 juin 2019 annulant partiellement la loi du 25 juin 2017 réformant des régimes relatifs aux personnes transgenres, et de ses conséquences en droit belge à la lumière du droit compare (Institut pour l’Egalité entre les Femmes et les Hommes, 2019).
[80] The state decides who am: Lack of legal gender recognition for transgender people in Europe (2014) Amnesty International, London
[81] Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity A/73/152 (2018): https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/220/41/PDF/N1822041.pdf?OpenElement
[82]Children (Scotland) Act 1995 Section 11 http://www.legislation.gov.uk/ukpga/1995/36/section/11
[83] Equality Act 2010 Schedule 3 Part 7 Sections 26 and 27: https://www.legislation.gov.uk/ukpga/2010/15/schedule/3/part/7
[84] Equality Act 2010 Schedule 3 Part 7 Section 28: https://www.legislation.gov.uk/ukpga/2010/15/schedule/3/part/7
[85] Equality Act 2010 Section 7: https://www.legislation.gov.uk/ukpga/2010/15/section/7
[86] Scottish Prison Service “Gender Identity and Gender Reassignment Policy for those in our Custody 2014) can be downloaded here: https://www.sps.gov.uk/Corporate/Publications/Publication-2561.aspx
[87] Gender Recognition Act 2004 Section 19: https://www.legislation.gov.uk/ukpga/2004/7/section/19
[88] Equality Act 2010 Section 195(2): https://www.legislation.gov.uk/ukpga/2010/15/section/195