Gender Recognition Reform (Scotland) Bill (Detailed)

Stonewall Scotland is a charity that campaigns for LGBTQ+ equality.

Stonewall Scotland strongly supports the removal of the requirement for a medical diagnosis of gender dysphoria and supporting medical evidence.
Under section 3 of the Gender Recognition Act 2004, applicants are currently required to submit medical reports to the Gender Recognition Panel detailing their diagnosis of ‘gender dysphoria’ and any treatment that they have undergone, are undergoing, or has been prescribed or planned, 'for the purpose of modifying sexual characteristics', such as hormone treatment or surgery. This process can be arduous, humiliating, and invasive for trans people, and applicants can encounter financial barriers obtaining medical reports.
De-medicalising the application process and adopting a model based upon self-declaration is crucial for Scotland to align itself with modern systems of gender recognition, for example those adopted in Argentina (2012), Denmark (2014), Malta (2015), Ireland (2015), Colombia (2015), Norway (2016), Belgium (2017), Portugal (2018), Luxembourg (2018), Iceland (2019), New Zealand (2021) and Switzerland (2022). Across these jurisdictions, trans men and trans women are able to access legal recognition through making a simple application or request, usually involving only a statutory declaration or other written statement, and do not have to have obtained any medical diagnoses or have medical evidence assessed by a third-party panel. This would further reflect the changes made as part of the World Health Organisation’s ICD-11, which moved redefined categories of ‘gender incongruence’ out of the ‘mental and behavioural disorders’ chapter.
The de-medicalised model of self-declaration for gender recognition legislation is further supported by the Yogyakarta Principles, which maintain that UN member states should “take all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity” and “ensure that procedures exist whereby all state-issued identity papers which indicate a person’s gender/sex — including birth certificates, passports, electoral records and other documents — reflect the person’s profound self-defined gender identity” (Principle 3, The Right to recognition before the law).
Principle 31, The Right to legal recognition, recommends that states institute “a quick, transparent, and accessible mechanism that legally recognises and affirms each person’s self-defined gender identity” for which “no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be prerequisite to change one’s name, legal sex or gender”. This aligns with Resolution 2048 of the Parliamentary Assembly of the Council of Europe, which called on member states to “develop quick, transparent and accessible procedures, based on self-determination” for legal gender recognition, to “abolish sterilisation and other compulsory medical treatment, as well as a mental health diagnosis” as requirements for obtaining legal recognition, “consider including a third gender option in identity documents for those who seek it”, and “ensure that the best interests of the child are a primary consideration in all decisions concerning children”.
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:
• Be based on self-determination by the applicant
• Be a simple administrative process
• Not require applicants to fulfil abusive requirements, such as medical certification, surgery, treatment, sterilization or divorce
The current psychiatric diagnosis and medical evidence requirements fall far short of international best practice in this area, with a growing number of jurisdictions around the world introducing ‘quick, accessible and transparent’ processes, on the basis of self-determination.

While Stonewall Scotland warmly welcomes that the Bill would remove requirements to provide evidence of having lived in the ‘acquired gender’ for two years and introduce a self-declaratory system with statutory declaration, we oppose the requirement for applications to include in that statutory declaration that they have lived in the ‘acquired gender’ for three months. This is, in our view, wholly unnecessary, and we are further concerned that this provision could prompt the re-introduction of requirements for some applicants to provide evidence of having lived in the ‘acquired gender’. We would therefore call for amendments to remove this requirement.

There does not appear to be any justification given for this three-month period, although the Scottish Government claims that this would be a “reasonable length of time to demonstrate serious commitment behind the application”. However, that applicants would make a solemn, statutory declaration to a notary public or justice of the peace, taking in to account the criminal penalties that a fraudulent declaration or false application could be liable to, in our view demonstrates a suitably serious commitment.

As far as we are aware, there are no similar provisions in any other modern system of gender recognition for applicants to have lived in the acquired gender for a defined period, and domestically this would be inconsistent with the process used to change the name and/or gender on other forms of identification, such as passports and driving licenses, whereby applicants are not obliged to have lived in the ‘acquired gender’ for any defined period. The proposal would also be inconsistent with other uses of a statutory declaration, such as officially recording a change of name, where there are no requirements to have been using that name for any defined time period. This includes instances where the change of name is related to a trans person’s social transition.

Evidence requirements
Stonewall Scotland is particularly concerned that maintaining a requirement to have lived in the ‘acquired gender’ for a set period could prompt the re-introduction of requirements for some applicants to provide evidence of having lived in the ‘acquired gender’ for three months, rather than to simply declare that this is the case in the statutory declaration.

Section 8U(1)(c) would enable the Registrar General for Scotland to, by regulations, make further provisions relating to the information or evidence to be included in an application or notice of confirmation, thereby creating an opportunity for requirements for evidence to be added at a later stage. The Policy Memorandum outlines that the Bill “removes the routine (our emphasis) requirement to submit evidence of living in the acquired gender” and that the Scottish Government will “work with National Records of Scotland to publish supporting guidance for applicants under the new process” which will “provide further information to applicants including on living in the acquired gender”. We are concerned that this would indicate that the Scottish Government’s intentions are for some applicants to be required to provide evidence of having lived in the acquired gender for three months, and we would wish to seek assurances from the Scottish Government that any evidence requirements introduced by regulations under section 8U(1)(c) could not replicate the existing barriers to legal gender recognition faced by trans men and trans women in compiling and presenting evidence. Any decisions to introduce such information or evidence would be at odds with the Scottish Government’s stated rationale and principles of reforming gender recognition legislation.

Stonewall Scotland strongly supports that the Bill would remove the role of the Gender Recognition Panel, a UK tribunal which acts as an unnecessary gatekeeper to legal gender recognition, in determining applications, and welcome that this would be replaced with a system of self-declaration, whereby applications would be determined objectively by the Registrar General for Scotland as to whether the statutory declaration made by the applicant met the necessary grounds for approval.

Section 10A
We welcome the provisions under section 10A requiring the Registrar General for Scotland to provide copies of certificates granted to the Registrars General for England and Wales or Northern Ireland, where relevant, enabling those Registrar Generals to update their register entries. It is crucial that those Registrar Generals thereafter do update their register entries so that those, for example, resident in Scotland but with an English birth certificate can have their certificates reflect the acquired gender.

We would further note the need for co-operation between the Scottish Government and UK Government so that those with gender recognition certificates issued by the Registrar General for Scotland are able to update their gender recorded with HM Revenue and Customs and the Department for Work and Pensions.

Section 15
Stonewall Scotland welcomes section 15, which modifies the Registration of Births, Deaths and Marriages (Scotland) Act 1965 to add requirements for the Registrar General to include information about gender recognition in the annual report on the number of births, deaths and marriages in Scotland. This includes the number of applications made and the number of full, interim, and confirmatory gender recognition certificates issued. This is a sensible inclusion in the Bill and will provide useful data on the operation of the Act, as has been given in Ireland following similar provisions in their Gender Recognition Act 2015.

Stonewall Scotland strongly opposes the proposal that applications are only to be determined after a further period of reflection of at least three months following the application. This is an unnecessary, arbitrary requirement which will obstruct and delay applications and will undermine the self-determination of trans people. We strongly call for amendments to remove the requirements for a reflection period and notice of confirmation.

The reflection period is not consistent with the principle of self-declaration that must be at the centre of the new system of legal gender recognition, reinforcing the idea that trans people cannot be trusted to make decisions about their lives without some form of oversight and suggesting that they have not already considered their decision and the implications of this at length. Many trans men and trans women making applications are likely to have already been living in the ‘acquired gender’ for a long period of time and should not be required to further ‘reflect’ on their gender and experience delays in accessing legal gender recognition.

A significant barrier to applying for a gender recognition certificate through the existing process is the length of time that it takes to complete the application process. To replace the current two-year delay with an arbitrary three-month period of reflection – in addition to the three months that it is suggested the applicant must have been living in their ‘acquired gender’ prior to the application – would only replace some of the bureaucracy and delay of the process which the Scottish Government seeks to streamline through the introduction of this Bill. In certain situations, the need to ensure that identity documentation is accurate, consistent, and up to date can be particularly time sensitive. The proposed reflection period could delay those without legal gender recognition who would be seeking this to enter a marriage or civil partnership in the ‘acquired gender’. Likewise, this would have a considerably negative impact on trans people approaching end of life, who may urgently seek to apply for legal gender recognition to ensure that they will be recorded and remembered in the ‘acquired gender’ in death.

The intention of the statutory period of reflection, as outlined in the Policy Memorandum, is “to further affirm the seriousness of the process and provide further assurance that applicants have fully and carefully considered their decision.” However, that applicants would make a solemn, statutory declaration to a notary public or justice of the peace, taking in to account the criminal penalties that a fraudulent declaration or false application could be liable to, would ensure that the process remains sufficiently serious. The criminal offences introduced by sections 22A(1) and 22A(2), of making a false or fraudulent statutory declaration in relation to a gender recognition application and including any other false information in an application for gender recognition, respectively, are significant enough for decisions around applying not to be taken lightly. The former would mirror the existing provisions in the Criminal Law (Consolidation) (Scotland) Act 1995 for knowingly making a false statutory declaration and would be subject to up to two years imprisonment and/or a fine. We would deem this to be a sufficient disincentive to non-trans people who might seek to make a fraudulent application, with no evidence to suggest that similar legislation in other jurisdictions without statutory reflection periods has been misused with criminal intent. In jurisdictions where self-declaration models are already in operation, such as Ireland, there has been no significant rate of people going through the process and then changing their mind.

Since the commencement of the Gender Recognition Act 2015 in Ireland, there have only been three incidences where holders of gender recognition certificates have requested the revocation of their certificate, all of which have been granted. In the two other jurisdictions with an enforced period of reflection – Belgium (three to six months) and Denmark (six months) – we are not aware of any evidence to suggest this has added any benefit. Indeed, the Scottish Government recognises in the Policy Memorandum that “the number of applicants who would choose not to pursue the process after this period is anticipated to be small, based on the operation of similar processes in Denmark and Belgium”.

The period of reflection also intends to inform applicants about the implications of obtaining legal gender recognition and require them to further consider their decision before becoming in receipt of a full or interim gender recognition certificate. Under section 8B(2), the Registrar General must, upon giving notice to the applicant on receipt of application that the reflection period has begun, give the applicant information as to the effect of the issue of a gender recognition certificate. It is our view that such information could be made available, in advance of an application being made, so that the applicant is reliably informed as to the effect of the application, without a period of reflection being enforced. Instead, the statutory declaration could include that the applicant understands the consequences of the application, as is the case in Ireland.

Stonewall Scotland fully supports that section 8A(1)(a) would reduce the minimum age at which a person could apply to obtain a gender recognition certificate from 18 to 16, and would welcome a separate process being introduced to enable under 16s to apply with parental consent.

The current restrictions placed on trans young people under the 2004 Act present inconsistencies with other rights afforded to 16- and 17-year-olds in Scotland, such as the ability to gain employment, enter a legally binding contact, vote in Scottish Parliament and local government elections, enter a marriage or civil partnership, consent to medical treatment, and be held legally responsible for their actions. Extending these rights to younger trans people will also help align their social and legal identities and bring the sex on their birth certificate in line with other documentation. Those aged 16 and 17 are already able to update other documentation in line with their identity of their own accord – for example, trans young people can apply for a passport on their own behalf and officially record a change of name, both in line with the ‘acquired gender’.

Importantly, many trans people aged 16 and 17 years old in Scotland will be at a point of change in their lives, at school leaving age, and would wish to obtain a gender recognition certificate before entering new communities, progressing into employment, or entering higher or further education. As with older trans people, 16- and 17-year-olds who are in or seeking employment would benefit from having legal gender recognition so that their ‘right-to-work’ documents and tax records could not inadvertently reveal their trans status to their employer without their consent, impinging their privacy and putting them at risk of discrimination. Furthermore, those seeking to enter a marriage or civil partnership, in line with their legal rights, would only be able to do so in the ‘acquired gender’ if a gender recognition certificate had been obtained.

We welcome that the Scottish Government’s Child Rights and Wellbeing Impact Assessment (CRWIA) for the Bill highlights that there is substantial evidence that the current restrictions “negatively impact the wellbeing of young trans people and their ability to live dignified lives free from discrimination” and that there is no “robust evidence that lowering the application age to 16 would be harmful to children or young people.”
As outlined in the CRWIA, by extending the ability to apply for legal gender recognition to 16- and- 17-year-olds, the Bill will give further effect to their rights under the United Nations Convention on the Rights of the Child (UNCRC), namely: their Article 3 right to have their best interests prioritised; Article 5 right to have their increasing capacity to make their own choices recognised; and Article 12 right to have their views, feelings and wished considered and taken seriously. This is particularly important as the Scottish Government incorporates the UNCRC into Scots law. Indeed, reducing the minimum age at which a person can apply for legal gender recognition to 16 would bring Scotland more closely aligned with international best practice, with provisions for 16- and 17-year-olds in at least ten countries. In Norway, Portugal, Switzerland, and Malta, those aged 16 and 17 can access gender recognition through the same process as those aged 18 and over – in Norway, following the introduction of the Legal Gender Amendment Act in 2016, any person over the age of 16 can change their legal gender and name by way of filling in a short document and registering it with the local tax office.
As noted in the CRWIA, there is no robust evidence to suggest that any countries who have lowered the minimum legal age for gender recognition to 16 have experienced a negative impact on children’s rights as a result.

However, we are disappointed that there are no provisions in the Bill for trans children and young people under 16 to access legal gender recognition and would welcome a separate process being introduced by amendments to enable under 16s to apply with parental consent. This would be consistent with other processes for changing identity documentation and accessing similar pathways – for example, parental consent is already required by under 16s to update passports and medical records, register a change of name, and gain access to many services. This would be far from the first case where gender recognition for under 16s has been introduced. In Norway, children and young people between the ages of 6 and 16 years old can access the legal gender recognition process if at least one parent consents. In Malta, under 16s can access legal gender recognition through the court system, with consent and support from their parents or legal guardians – and parents and legal guardians can postpone the inclusion of a gender marker on a birth certificate until the child or young person determines their gender.

Stonewall strongly opposes the ‘spousal veto’ in place under the 2004 Act as it applies in England and Wales, which gives unprecedented power to a trans person’s spouse to block them from obtaining legal gender recognition. Stonewall Scotland supported amendments to the Marriage and Civil Partnership (Scotland) Act 2014, which removed the requirement for spousal consent from applications under the 2004 Act as it applies in Scotland and ensured that applicants in Scotland could not ultimately be blocked by their partner from obtaining gender recognition.

However, we do hold reservations about the process under section 4E the 2004 Act as it currently applies in Scotland, and that which the Bill essentially proposes to continue, for trans people obtaining gender recognition where their partner does not wish the marriage or civil partnership to continue. The Registrar General would be required under section 8E(6) to grant an interim gender recognition certificate, as opposed to a full certificate, to applicants who are parties to a marriage or civil partnership but where the spouse or civil partner does not wish the marriage or civil partnership to continue after the issue of a full certificate. Within six months of the issue of the interim certificate, the applicant would be able to apply under section 8H to the sheriff for a full certificate, which the sheriff would be required to issue so long as circumstances had not changed.

We recognise the process of applying to the sheriff that trans people in these circumstances must undertake to be unnecessarily convoluted, and will cause delay in obtaining a full gender recognition certificate. However, we ultimately welcome that section 8H will continue to ensure that the spouse of a trans person will be unable to directly prevent them from obtaining a full certificate.

We welcome the provisions regarding overseas gender recognition, including those for confirmatory gender recognition certificates.

At present, those who have obtained gender recognition outwith the United Kingdom must make a further application under the ‘overseas route’ of the 2004 Act if the recognition was obtained in an ‘approved country or territory’, as detailed by the Gender Recognition (Approved Countries and Territories) Order 2011 (S.I. 2011/1630). This system is in place to ensure that trans people from overseas must meet similarly stringent requirements of the 2004 Act to be legally recognised in the United Kingdom. Not only does this system require trans people from overseas to re-apply for legal gender recognition, but it rules out those who have obtained gender recognition from countries and territories with more progressive gender recognition laws, such as Ireland, from applying through the overseas route.

In adopting a more progressive system of self-declaration in Scotland, this would in effect remove the requirement for such an overseas stream. Under the self-declaration system in Malta, decisions made about a person’s gender identity that are determined by a competent foreign country or authority are automatically recognised with no further process required. Stonewall Scotland therefore welcomes that section 8N would enable those who have obtained overseas gender recognition to be regarded as the ‘acquired gender’ in Scotland, without having to re-apply, and that paragraph 16 of the Schedule would revoke the 2011 Order. This will enable a greater number of trans men and trans women who have obtained gender recognition outwith the United Kingdom to be automatically legally recognised in Scotland.

It is unlikely that trans young people under 16 and non-binary people who had obtained legal gender recognition overseas would be recognised in the ‘acquired gender’ in Scotland as this would be “manifestly contrary to public policy,” as per section 8N(2), although granted that whether a public policy exception applies will depend on the facts and circumstances, and may be determined by the courts under new section 8P. While we understand that the provisions for recognising those obtaining gender recognition in Scotland should not be subordinate to those who have obtained gender recognition overseas, we are disappointed that the proposed reforms falling short of international best practice has required the inclusion of this clause within the Bill. We would wish to seek further clarification from the Scottish Government as to how non-binary people with overseas recognition of their gender will be treated in Scotland in practice.

With regards to the provisions for confirmatory gender recognition certificates under section 8O, we had expressed reservations in our response to the public consultation on the draft Bill around this provision as the consultation paper had outlined that while there would be no obligation to apply for a confirmatory certificate, it “may be helpful to put the matter beyond doubt.” We sought clarification from the Scottish Government regarding the ‘doubt’ that there may be of the recognition in Scotland of those with overseas gender recognition under the proposed new system, considering that section 8N would apply whether or not a person had been issued with a confirmatory gender recognition certificate under section 8O. The Explanatory Notes for the Bill provide that clarification, by giving the example of a person who may wish to apply for a confirmatory gender recognition certificate if they wish an amendment to be made to a register entry held by the Registrar General, such as for marriage or civil partnership. We welcome that it further states that section 8O(5), which requires an application for a confirmatory certificate to set out the applicant’s reasons for making the application, will “enable the Registrar General to remind applicants that obtaining legal gender recognition overseas provides legal gender recognition in Scotland and, usually, there should be no need for a confirmatory GRC” and that “a confirmatory Scottish GRC following gender recognition overseas is not generally needed as overseas legal gender recognition is usually to be treated as valid by virtue of new section 8N(1).”

We understand that section 22A(1) would create a new offence for knowingly making a statutory declaration in relation to an application for gender recognition that is false in a material particular, however that this mirrors the offence under the Criminal Law (Consolidation) (Scotland) Act 1995 of knowingly making a false statutory declaration, which is disapplied in relation to gender recognition applications under paragraph 12 of the Schedule.

Stonewall Scotland believes that creating a specific offence for making a false declaration in order to obtain a Gender Recognition Certificate, when doing so is already criminal under existing law, is unnecessary and stigmatising. As a result, we think that new section 22A(1) should be removed from the Bill.

Stonewall Scotland is content with the insertion of section 22A(2), which creates an offence for including any other information that is false in a material particular in an application for a gender recognition certificate, full certificate, confirmatory certificate, or notice of confirmation.

Stonewall Scotland supports the removal of powers to introduce a fee.
The UK Government’s National LGBT Survey (2018) found that of those who were interested in getting a gender recognition certificate but had not yet applied for one, one in three (34 per cent) cited that the process was too expensive, with an application fee of £140. The application fee would be additional to the other costs that could be associated with making an application under the 2004 Act, such as and accessing private healthcare to avoid inordinately lengthy delays in obtaining a gender dysphoria diagnosis, obtaining medical reports, and updating other forms of identification to evidence living in the acquired gender. Stonewall Scotland therefore welcomes that the provision within the draft Bill enabling the Registrar General to, by regulations, make provision about the fees payable in connection with an application has been removed in the Bill as introduced. This follows the UK Government’s decision to lower the fee for applications under the 2004 Act from £140 to a nominal fee of £5, which would be unable to be waived entirely without amending the Act to remove section 7(2).

Stonewall Scotland does not believe it to be possible to deliver the Bill’s intended policy outcomes through other means, such as using existing legislation. To deliver many of the crucial aspects of these reforms – removing requirements for medical reports, a gender dysphoria diagnosis, and to evidence having lived in the acquired gender for two years; reducing the minimum age to 16; and replacing the role of the Gender Recognition Panel with the Registrar General for Scotland – it is absolutely necessary to amend the Gender Recognition Act 2004 as it applies to Scotland.

While a positive step forward for the equality of trans men and trans women, this Bill does not reflect international best practice, and we believe that the Bill should be amended in a number of ways to better deliver for trans people in Scotland. As noted in response to other questions, this includes the removal of both the three-month reflection period and the three-month living in the acquired gender requirement, in addition to a separate process being instigated for under 16s to apply with parental consent. We also call for the removal of new section 22 (A) 1. Additionally, we would welcome amendments to put a duty on Scottish Ministers to fully scoping non-binary legal recognition

Non-binary recognition
We regret the decision made announced by the Scottish Government in June 2019, prior to the consultation on the draft Bill, that it would not extend legal gender recognition to non-binary people at this time, and understand that it is now highly unlikely to be possible to introduce non-binary legal recognition by way of amendments to this Bill, considering the “considerable analysis and legislative change” that this would involve, and which has not been fully considered by the Scottish Government.

This is disappointing, as without non-binary legal recognition, these reforms will only benefit a subsection of the trans population and fail to meet international best practice on all counts. It is therefore important that steps are taken to create the circumstances in which non-binary legislation could be brought about in future, including ensuring all necessary analysis of legislative competence, the changes that would be required to UK and Scottish legislation, and the wider implications of non-binary legal recognition, is completed.

The Scottish Government’s working group on non-binary people’s equality, made recommendations to Scottish Ministers about how to improve non-binary people’s equality and inclusion in Scotland in March 2022. We understand that the publication of those recommendations, alongside the Scottish Government’s response, is imminent.

We would encourage the Committee to consider the merits of introducing amendments to this Bill that would place duties on Scottish Ministers to review the impact, or lack thereof, that this Act will have on non-binary people, or to fully scoping non-binary legal recognition, and thereafter to set out their next steps to the Parliament. This could be drafted similarly to Section 31 of the Children (Scotland) Act 2020, which placed a duty on Scottish Ministers to review the impact this legislation had on children’s ability to effectively participate in decision-making, and set out steps it planned to take based on this review to the Scottish Parliament.

Looking overseas, Section 7 of the Gender Recognition Act 2015 in Ireland stipulated that the relevant Minister should, within two years, commence a review of the operation of this legislation, and to report on the review within twelve months of its commencement. The initial report of the review found that the Act was operating successfully and recommended, following extensive legal analysis and consultation with relevant stakeholders, that legal recognition should be made available to non-binary people. A similar clause in this Bill may better enable further consideration of non-binary recognition.

Section 8S
Stonewall Scotland has strong reservations around the inclusion of section 8S which would enable ‘person who has an interest in a gender recognition certificate’ to apply to the sheriff to have the certificate revoked, including on the grounds that the application was fraudulent (subsection 1(b)) or that the applicant was incapable of understanding the effect of obtaining the certificate or incapable of making the application (subsection 1(c)).

In the public consultation on the draft Bill, the consultation paper provided the Registrar General for Scotland as an example of a ‘person with an interest in a gender recognition certificate’. However, the Explanatory Notes for the Bill gives the spouse, civil partner or child of a person who has obtained a gender recognition certificate as further examples of a person who would have a genuine interest. We are extremely concerned that this provision could enable family members who are not supportive of the person’s decision to transition to make vexatious and malicious applications to the sheriff to have their gender recognition certificate revoked, unfounded on evidence, which could lead to further distress and trauma for the trans person at the centre of the case.

We would wish to seek further clarification over the grounds for determining as to whether a person making the application for revocation would have an interest in a gender recognition certificate, and whether it could be possible for those not directly connected to the person with the gender recognition certificate, such as campaigning groups, to be deemed to have a genuine interest. We would further welcome clarification on the level of proof required from the person with the interest to substantiate their claim.


Section 8U
Section 8U(1)(c) would enable the Registrar General for Scotland to, by regulations, make further provisions relating to the information or evidence to be included in an application or notice of confirmation. Unless these regulations were to add to, omit or replace any part of the text of an Act, they would be subject to the negative procedure, and therefore reduced parliamentary scrutiny. If the application was not to comply with the requirements imposed by ‘any regulations’ made under section 8U(1)(c), the Registrar General would be obliged to reject it.

This creates the opportunity for evidence requirements to be added at a later stage. The Policy Memorandum outlines that the Bill “removes the routine (our emphasis) requirement to submit evidence of living in the acquired gender” and that the Scottish Government will “work with National Records of Scotland to publish supporting guidance for applicants under the new process” which will “provide further information to applicants including on living in the acquired gender”.
We are concerned that this would indicate the Scottish Government’s intentions are for some applicants to be required to provide evidence of having lived in the acquired gender for three months, per section 8C(1)(a)(iii), in a similar manner to which substantial evidence must be provided of living in the acquired gender for two years under the 2004 Act.
We would wish to seek assurances from the Scottish Government that any evidence requirements introduced by regulations under section 8U(1)(c) could not replicate the existing barriers to legal gender recognition faced by trans men and trans women in compiling and presenting evidence. Any decisions to introduce such information or evidence would be at odds with the Scottish Government’s stated rationale and principles of reforming gender recognition legislation and, in our view, must be subject to a higher level of parliamentary scrutiny than the negative procedure.

This information and evidence would be in addition to that which is already required. For example, evidence must be provided of the dissolution or annulment of marriages and civil partnerships under inserted section 8J, as well as evidence of the spouse or partner’s death and the date on which it occurred under section 8K. While such evidence is necessary in the Bill as introduced to demonstrate that the applicant meets the conditions of section 8D to be issued a full certificate, we do not believe that information or evidence should be required to demonstrate that an applicant has lived in the ‘acquired gender’ for the period of three months, per section 8C(1)(a)(iii).