Gender Recognition Reform (Scotland) Bill (Detailed)

LGBT Youth Scotland’s vision is that Scotland is the best place to grow up for lesbian, gay, bisexual, transgender and intersex young people. We play a leading role in the provision of quality youth work to LGBTI young people that promotes their health and wellbeing, and we are a valued and influential partner in LGBTI equality and human rights.

LGBT Youth Scotland support this step, as it would be in line with international best practice making the process much more straight forward and removing the requirement for supporting medical evidence. Other countries that have removed the requirement for medical diagnosis, including Argentina, Belgium, Colombia, Denmark, Iceland, Ireland, Luxembourg, Malta, New Zealand, Norway, Portugal and Switzerland.
Although work is underway to reduce waiting times at Gender Identity Clinics (GICs), the wait time now for a first appointment is expected to be in excess of four years in some cases and has over 1000 young people on the waiting list. This leaves young trans men and women in a limbo where they cannot progress with medical transition nor obtain a Gender Recognition Certificate (GRC), whilst they present themselves in their true gender and have some documentation such as driving licenses and passports updated, as they are much easier to process. Incomplete or mis-matched documentation means that they can be placed in vulnerable situations which could be problematic at best, or dangerous at worst. This particularly affects trans young people who are more likely to have to use their birth certificates as a form of identification particularly when starting in a new education establishment, moving to a new house, opening bank accounts, etc.

Finally, it would put Scottish legislation in line with the World Health Organization ICD-11 which no longer categorises ‘gender incongruence’ in the ‘mental disorders’ chapter.

LGBT Youth Scotland supports the introduction of a requirement of a statutory declaration. We are aware of no strong justification for an arbitrary three-month period to be put in place in Scotland. Nor are we aware of this being in place in other countries. With the aspiration to match world leading legislation concerning self-declaration, LGBT Youth Scotland advocate that the 3-month requirement be excluded from the Bill.

Trans people can update their other identity documents (passport, driver’s licence, etc) with ease, and those that are regularly used because they have photographic ID are often the priority and this three-month requirement would mean there was a period where their documentation has conflicting information. This puts trans people at risk of being outed (i.e. their trans status being disclosed) which is both a real risk to their safety and a source of anxiety. This particularly affects young trans people who are more likely to have to use their birth certificates as a form of identification particularly when starting in a new education establishment, moving to a new house, opening bank accounts, etc.

Research with Young People*
Around 90% of the young people we consulted with either felt that reducing the lived experience requirement from two years to three months was "good" or “ok but could be better”.
Specifically, young people also called for improvements to the Bill including shortening or eliminating the lived experience requirement. Many felt that this requirement misunderstands the experience of being trans because gender identity is an individual journey and young people are likely to have been living in their true gender for a significant time before applying for a GRC.

Overall LGBT Youth Scotland believes that the lived experience requirement is unnecessary as the obligation to sign a statutory declaration that this change is permanent gives enough weight to the seriousness of the decision. We believe young people with the capacity to make decisions are capable of understanding the seriousness of obtaining a GRC and that a young person over the age of 16 should be able to make this decision. In our experience of working with trans people up to the age of 25, is the norm for a trans person to apply for a GRC only after being sure of their gender identity and it is therefore unnecessary for the Scottish Government to enforce this. The statutory declaration will require applicants to swear that they intend to ‘live in their gender until death’ means that people are highly unlikely to apply if they are uncertain.

* Around 200 LGBT Young people from across Scotland were consulted on their views on Gender Recognition Act (GRA) reform through workshops and online consultation in January 2020

LGBT Youth Scotland agree that the Registrar General for Scotland should undertake the bureaucratic process of reviewing applications for GRCs meet the legal requirements. If the legislation changes, the process in Scotland will be more bureaucratic rather than assessing arbitrary evidence to establish a threshold at which point a person is decided to be ‘trans enough’ to acquire a GRC – as is the case with the UK Tribunal system at present.

The proposed process does not require assessment by a panel, rather, an administrative check by the Registrar General for Scotland to ensure paperwork is accurately completed and satisfies the needs of the legislation.

LGBT Youth Scotland welcomes the progress that the Bill presents – it aligns with what young LGBT people tell us they want and we called for such progressive reform through our Manifestos in 2016 and 2021* – however, we feel it would be more progressive if the reflection period was removed. Furthermore, this would support Scottish Governments desire to be an example of international best practice.
As set out above, the statutory declaration is a serious oath that young people should not undertake without deep contemplation. Young people that use our services tell us that when they come to apply for a GRC, they have already been reflecting for a period that far exceeds three months, hence they feel that reflection period is arbitrary and unnecessary. Furthermore, our latest research shows that trans young people come out at 15**, meaning many would already have to wait until they were 16 as the Bill stands. Whilst some may argue that the introduction of a reflection period and the requirement to live in your ‘acquired gender’ for three months would allow for contemplation and amplify the seriousness of this decision, LGBT Youth Scotland feel that the making it an offence to provide a false declaration or application will offer enough cause for applicants to take this decision very seriously. The severity of the punishment for a false declaration of up to two years imprisonment and / or a fine will also ensure that people who are not a trans man or women but seek to abuse the system would be sufficiently put off.

However, as it already is an offence with the same associated punishment to deliberately undertake a false declaration, we see no benefit to introducing a specific offence associated with legislation that only relates to trans people.
LGBT Youth Scotland believe that for trans young people’s rights to be achieved in line with the UNCRC and Yogyakarta Principles, the Bill should not have a three-month reflection period.

Research with Young People***
The vast majority (82%) of trans young people from our youth groups and online survey thought that the three-month reflection period post application was too long or unnecessary. Again, many young people pointed out that applying for a GRC is currently one of the last things that trans men and women do in their transition, and many feel that they have had ample time to reflect on the consequences and impacts of gaining documentation that matches their lived gender. Many also pointed out that they have been aware of the incongruence between their gender and documentation since they were very young and waiting until they are 16 would already afford them years of reflection and ample opportunity to assess the impacts. Many young people felt that the reflection period after statutory declaration did not respect their decision, effectively contriving Article 12 of the UNCRC (respect the views of the child).

* Speaking up for Our Future: LGBT Youth Scotland Manifesto 2021-26. Available online: https://www.lgbtyouth.org.uk/media/2318/lgbtys-manifesto-2021-2026.pdf
** Cronie, K., (2022) Life in Scotland for LGBT Young People. LGBT Youth Scotland. Available online: www.lgbtyouth.org.uk/media/2712/life-in-scotland-for-lgbt-young-people-2022-e-use.pdf
*** Around 200 LGBT Young people from across Scotland were consulted on their views on Gender Recognition Act (GRA) reform through workshops and online consultation in January 2020

In our response to the 2018 Review of the Gender Recognition Act (2004), LGBT Youth Scotland set out that we believe that people aged 16 and 17 should be able to apply for legal gender recognition, and that this was in line with other rights accessible at the age of 16 in Scots law, such as the ability to enter into marriage or civil partnership; recording a name change or voting in Scottish elections.

We are pleased to see significant support from two thirds (66%) of respondents from Scotland for lowering the age to 16 for application of GRC in Question 5 of the analysis of responses to the 2018 consultation (The Scottish Government proposes that people aged 16 and 17 should be able to apply for and obtain legal recognition of their acquired gender. Do you agree or disagree?).

We are aware that the Scottish Government’s analysis highlighted that some respondents who disagreed with lowering the age had conflated the two very separate issues of the legal process for obtaining a GRC and the medical procedures that some trans people choose to have: “1 in 9 … ‘it was suggested that 16- or 17-year olds may not yet be able to fully think through the longer-term implications of what they are doing, particularly in terms of the health impacts that any medical intervention may have’. It is important to be clear that the legal process for obtaining a GRC is not dependent on medical procedures that may be associated with transition. Indeed, the Bill would mean that diagnosis of gender dysphoria would no longer be required in order to obtain a GRC. There is no requirement or correct process for people to follow when transitioning. Under the current proposal some trans people may choose to apply for a GRC and have medical procedures, some may choose one or the other, or some trans people choose neither.

Other concerns in regards to the mental health of young people applying for GRCs have been raised through the previous consultation processes. Our research shows that young trans people who undertook our Life in Scotland for LGBT Young People* research have considerable mental health issues, which is in alignment with the findings of the Scottish Government that trans people are more likely to have mental health needs more often than the people who are not trans. Our research showed that within the last year:
• 81% of trans participants experienced anxiety (compared to 73% cisgender)
• 66% of trans participants experienced suicidal thoughts and / or actions (almost double cisgender at 34%)
• 58% of trans participants experienced self-harm (again almost double that of cisgender respondents at 28%)

NB the report shows the stats for all LGBT young people who responded, further analysis of the data was required to present the trans respondents’ data above. A further trans specific report is planned where such figures will be detailed and explored further.

Young people we work with tell us that being able to have matching documentation will reduce their anxiety and positively impact on their mental health, particularly at significant times in their lives such as starting a new job, moving on to further education or starting in employment.

LGBT Youth Scotland is disappointed to see no progress for young people under the age of 16 in the Bill. We share the views of Clan Child Law and the Children and the Scottish Children’s Law Centre who have stated they consider the UNCRC Principles and existing Scottish legislative practice that people over 12 are deemed to have legal capacity to make decisions in certain circumstances – and that this principle could apply to the implementation of the GRA. We and the young people we work with and advocate on behalf of firmly believe that this is the case for application of a GRC. This is also in line with best practice as advocated through the Yogyakarta Principles.
LGBT Youth Scotland believes that a practical solution to this would be to allow parents and carers to apply on behalf of their child, recognising both children and young people rights as well as the rights of parents, and importantly taking into account the child’s capacity to make decisions at all ages. In our response to the 2018 consultation on GRA reform, we therefore stated preference for under 16-year-olds to be able to apply for a GRC with parental / guardian consent – and where this is not available or if, for example, there is disagreement between parents, an option of mediation and assessment of capacity should be made to determine if the young person understands the implications of their decision.

LGBT Youth Scotland believes that for young people’s rights to be realised, they should be able to request a GRC at the age of 16, and there should be an option for young people who are under the age of 16.

Consultation with young people**
Almost all (97%) respondents from our LGBT and trans specific groups, as well those surveyed online to guide our response to this consultation thought that the age where a person can apply for a GRC should be lowered to 16 – this is consistent with our previous findings.

Several themes were raised by young people in our consultation work on this question. Most prevalent was that young people have often been aware of and living in their true gender for years by the time they reach 16. Young people also made the point that being able to sign a statutory declaration to change their birth certificate is in alignment with other rights they are afforded at 16. They felt that being able to have consistent documentation at an age where they are likely to be making significant life changes such as applying to for college or university or entering the workforce would reduce the risk of being outed and reduce any risks to their safety.
Young people under 16

More than 80% of young people from our LGBT groups, trans specific groups and online trans respondents to our survey said that there should be an option available to young people under the age of 16.

In summary, LGBT Youth Scotland supports lowering the age a person can apply for a GRC to 16, and would like to see the introduction of an option for people under the age of 16, which is in line with Scots law, age of capacity and the Yogyakarta Principles as well as the UNCRC.

* Cronie, K., (2022) Life in Scotland for LGBT Young People. LGBT Youth Scotland. Available online: www.lgbtyouth.org.uk/media/2712/life-in-scotland-for-lgbt-young-people-2022-e-use.pdf

** Around 200 LGBT Young people from across Scotland were consulted on their views on Gender Recognition Act (GRA) reform through workshops and online consultation in January 2020

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LGBT Youth Scotland agrees with concerns raised by Stonewall Scotland and Scottish Trans / Equality Network that under these provisions it is likely that at some stage a young person moving to Scotland who has already received a GRC from their previous home country would be left somewhat in limbo if they were under 16 or non-binary.
The lack of ambition within the Bill to not being world leading in this legislative update creates a significant issue for those who are under 16 who may not be able to get a confirmatory GRC, resulting in mismatched ID. As raised elsewhere in our submission, this is particularly problematic and potentially dangerous for young trans men and women. Raising the ambition of the Bill to match international best practice will consequently raise the positive impact on young trans men and women and non-binary people.

With regard to young trans people whose non-binary gender has been legally recognised in their country of origin – we recommend that when the work of the non-binary working group is reviewed by the Scottish Government and Parliament that a suitable resolution is sought to ensure non-binary peoples gender is legally recognised. However we also urge a note of caution in ensure that there is not a provision for an overall review of this legislation, but that there should be a provision which would enable non-binary inclusion.

LGBT Youth Scotland believes existing legislation with regard to providing a false statutory declaration should be sufficient to be used in this Bill. We are confident that trans people know their own minds and will undertake this process solemnly and with deep personal consideration.

Young people have specifically asked for the issue of cost of obtaining a GRC to be reviewed through the reform of this Bill. This is a particularly burdensome for young trans people as they are typically in education or starting out in full-time work – a time in life when finances are particularly stretched.

This can mean that the cost is prohibitive for many young people applying. We know from our research* that 31% of trans young people cite lack of financial options as a barrier to reaching goals, and 58% of trans young people state that availability of jobs is another barrier. Whilst these questions were not specifically in relation to the GRA process, it is indicative of finances available to young trans people.

From our online survey for previous consultations, 95% of respondents said that the cost was too high and / or there should be no charge for applying. Whilst most respondents (55%) said there should be no charge, there was a reasonable number of people who felt that it would be acceptable for there to be some charge to cover administrative expenses – as is the case when applying for a new driver’s license or passport.

Young People’s Views on Cost
"Places even more pressure and limitations on those of us with financial troubles. Poor people can be trans too."
Trans young people’s views from our online survey
• "Transgender people have higher rates of homelessness and poverty anyway. £140 is quite a lot of money… I’d suggest £50 at maximum cost, perhaps less"
• "There should be no cost on being yourself"

* Around 200 LGBT Young people from across Scotland were consulted on their views on Gender Recognition Act (GRA) reform through workshops and online consultation in January 2020

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As set out above, LGBT Youth Scotland believes that there should be an option for people 15 and younger, and we acknowledge this could be a different system. Ideally it would involve parental / guardian consent and a process to allow for application if this is not in place, but still what the young person wants.

We share concerns raised by colleagues at Scottish Trans around the widening of the definition of a person of interest that can claim fraudulent behaviour application of a GRC. In particular we would ask Committee members to reflect than many trans young people do not have supportive families. We recently published our research Life in Scotland for LGBT Young People*. Data gathered for this research, but not yet published reveals that 1 in 10 trans young people who responded felt forced out of their family home in negative circumstances. This is double the rate for cis respondents, for whom it was around 1 in 20.

Widening the definition of person of interest to family members to enable them to interject in this otherwise administrative process and escalate the application to require review by a Sheriff could have significant implications for trans young people in particular. It is perfectly plausible that a Sheriff would then require trans young people to provide further evidence of the trans identity – in many respects putting them back to a process similar to the UK Tribunal Gender Recognition Panel they currently face. This would be arbitrary, not consistent across the country and not inline with the intention of the Bill. Finally, this process would considerably more expensive for those put in a position whereby they have to defend their application. Not only would collecting the relevant evidence that may be required, but in paying legal fees which may run into thousands of pounds. We ask that the definition of a person of interest remains as it currently is.

*Cronie, K., (2022) Life in Scotland for LGBT Young People. LGBT Youth Scotland. Available online: www.lgbtyouth.org.uk/media/2712/life-in-scotland-for-lgbt-young-people-2022-e-use.pdf

Recognition of non-binary people
LGBT Youth Scotland strongly believes that gender recognition should be extended to non-binary people. Young trans and / or non-binary people attending our services were extremely disappointed and distressed when the Scottish Government Cabinet Secretary announced that there would be no inclusion of recognition of non-binary people within the currently proposed Bill through this reform of the GRA process. LGBT Youth Scotland shares this disappointment, and we are particularly concerned that this may disproportionately affect young people, given that 50.8% of trans respondents aged 16-17 and 58% of trans respondents aged 18-24 identified as non-binary in the UK Government’s 2018 National LGBT Survey*.

A growing number of jurisdictions around the world provide legal recognition of non-binary people, and the Yogyakarta Principles call on legal recognition that provides more options than simply male and female. In consultation with trans young people we strongly believe that this is best international practice.
LGBT Youth Scotland would like to see within the legislation a requirement for Ministers to review recommendations from the non-binary working group and investigate how to ensure non-binary people can receive legal recognition. The maximum time for this should be five years from enactment of the legislation (but would of course be welcomed before). This review should be limited to including non-binary people, it should not be an opportunity to review the overall legislation.

Consultation with Young People**
96% of the young people we consulted with were in favour of non-binary recognition. When we asked young people their views, it was clear that non-binary people feel let down by the Scottish Government. They pointed out that lack of recognition will negatively impact their day-to-day lives, their mental health, their safety and acceptance within wider society. The passionate comments volunteered by young people in this section are a testament to their strength of feeling about this issue.

In particular, young people stated that excluding non-binary people from the draft GRA reform bill sent a message that they do not exist and that their identities are not valid. This arguably contravenes Article 8 of the UNCRC, which is concerned with a child’s right to preserve their identity. Many pointed out that they deserve the same rights as binary trans people (trans men and trans women) to legal recognition.

* National LGBT Survey: Research Report, UK Government. Available online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/722314/GEO-LGBT-Survey-Report.pdf
** Around 200 LGBT Young people from across Scotland were consulted on their views on Gender Recognition Act (GRA) reform through workshops and online consultation in January 2020