The Scottish Government have introduced proposals for a new law that would change the way someone can legally change their gender. The Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee are consulting on the plans, so this is an opportunity for anyone in Scotland to have their say.
Background to the Gender Recognition Act 2004
Through the Gender Recognition Act (GRA) it is possible for those diagnosed with gender dysphoria and over 18 to legally change their gender. Transgender adults can apply to what is a called a ‘Gender Recognition Panel’ to change their birth certificate (and receive what is known as a gender recognition certificate, GRC) from male to female or vice a versa.
The process for gaining a GRC is for the individual to:
- provide medical proof of gender dysphoria
- evidence of living in acquired gender for at least two years
- confirm their intent to live in new gender identity till death
At present, it is not possible anywhere in the four nations for an individual to self-declare changes to gender and to have that legally recognised.
This is a significant reform many transgender activists and supporters have been campaigning for and is one of the new proposals included in the Scottish Government reform bill.
What are the Scottish government's proposals?
The proposed new law would make significant changes to the current system, at the core of these is the removal of any need for a medical diagnosis of gender dysphoria. At present people wanting a Gender Recognition Certificate have to have lived in their ‘acquired gender’ for two years, whereas it is proposed this is reduced to three months with a further three months reflection. A further change suggested is that the minimum age at which someone can begin the process is reduced from 18 to 16.
These are major changes and the current proposals lack safeguards and undermine the seriousness of the decision involved in reassigning one’s gender. The proposals suggest the introduction of a new offence of making a ‘false declaration’ but it is unclear how this would be proved, and in fact could be problematic for people who having transitioned decide that they want to return to their birth sex.
Responding to consultation
You can either respond through a short survey, with simple answers to all but one question and an opportunity at the end to make further comments in support of your answers, or respond in more detail to the proposals.
We have set out some suggestions that may help you respond to this consultation below. The deadline for responses is 16 May.
Guide to responding to the short survey
1. Do you agree with the overall purpose of the Bill?
No
2. Should applicants for a GRC require a medical diagnosis of gender dysphoria or supporting documentation?
No
3. Should the period of living in an acquired gender be reduced from 2 years to 3 months (with an additional 3 month reflection period)?
No
4. Do you agree with the introduction of a 3-month reflection period before a GRC is granted?
Yes or Don’t Know – there should be a reflection period, but it should be longer than 3 months.
5. Do you agree with the removal of the Gender Recognition Panel from the Process, with applications instead being made to the Registrar General?
No
6. Should the minimum age for applicants be reduced from 18 to 16?
No
7. Do you anticipate any negative impacts from the provisions in the Bill?
Yes
8. Please provide any further comments you have about the provisions in the Bill.
An open question; feel free to respond to any of the questions in more detail in this space.
You may wish to comment on some of the following points:
- Require supporting medical/tribunal evidence as opposed to a self-declaration system;
- Increasing the statutory declaration period of living in the acquired gender above 3 months – this is a lifelong commitment;
- Keeping the minimum age of applicants to 18;
- Amending the false application offense to make it clear what is and isn’t a false declaration, and how it would be enforced.
Guide to responding to the detailed proposals
We recommend that you disagree with this; this combined with removing the applications from going before the Gender Recognition Panel essentially creates a system of “self-declaration” of gender identity. You could expand upon this by explaining what you see as the wider societal implications of how women and men relate to each other when your gender identity is defined by how somebody feels they are as separate to their biological sex (e.g. single-sex spaces for women, sport, children’s development etc.). You could explain why you think medical evidence should still be required, in that the current system is sufficient in only granting gender recognition certificates to those who suffer from gender dysphoria and therefore ensuring that there are robust safeguards in place before lifechanging decisions are taken.
We recommend that you disagree with this; two years as the law currently stands is a sufficient period to live in the acquired gender before obtaining a gender recognition certificate. If this is a permanent commitment for life, it requires this extended period of time to confirm that this is indeed the case – especially if the minimum age is reduced to 16.
We recommend that you disagree with this; the current system of the Gender Recognition Panel clearing all applications is the right way to process them, as if they are made to the Registrar General this contributes towards the system becoming one of “self-declaration” of a new gender identity and the wider societal implications this causes as mentioned in Q1.
We recommend that while you can welcome the introduction of a reflection period to confirm that this is definitely what the individual wants to proceed with, it is still too short a time period. The current system of two years is sufficient.
We recommend that you disagree with this. There are many things that you can’t do in Scotland until aged 17 and 18:
- Drive;
- Give blood;
- You can still be adopted if you are under 18 and not married;
- Vote in General Elections;
- Stand for election;
- Serve as a juror;
- Hire a sunbed;
- Buy alcohol and cigarettes;
- Buy or possess fireworks;
- Work behind a bar;
- Place a bet;
- Own a credit card;
- Be tattooed
Therefore, it needs to be made much more clear what the medical and social justifications are for reducing the minimum age to 16 – for a decision that arguably is of greater consequence than any of the above which you cannot do until you are 17 or 18.
Interim GRCs are granted within the context of a marriage or civil partnership, whereby it creates a process for someone married to or in a civil partnership with someone who is applying for a GRC to have the opportunity to end the marriage or civil partnership. You have the opportunity to express your thoughts on this. It is worth noting that in this situation where one partner has their gender reassigned it places the couple in a same sex partnership which may be against the wishes of the other partner.
We would recommend making comments asking questions about how this would be confirmed – each jurisdiction has their own form of gender recognition which will be different from Scotland’s, so it shouldn’t be granted automatically. The current system (applying to the Gender Recognition Panel to be granted a confirmatory Gender Recognition Certificate) is therefore sufficient.
We recommend that points are made about how this offense is potentially unworkable, yet is the only barrier to someone making a self-declaration of a new gender identity with an underlying motive, such as seeking to enter women’s single-sex spaces.
- What is a “false application” or “false information” – how would this be found and enforced?
- If someone decides later in life to change back to their original gender identity, would this then be deemed a false application? This shouldn’t be criminalised.
We recommend that in this question you push the Scottish Government to rethink this offense and develop a new one that would suffice.
We recommend for you to agree with this; there shouldn’t be a cost associated with any of these processes.
The policy outcomes of improving life for those who struggle with their gender identity can be achieved in other ways – the current system to obtain a Gender Recognition Certificate is sufficient. As Christians, we believe that everyone is made in the image of God, lovingly created. Therefore, if someone is mistreated, bullied or demeaned because they are transgender or struggle with their gender identity, this is completely wrong. Churches should be the most welcoming, loving places to everyone, no matter who they are or what they are going through. This can be done, and the struggles of gender dysphoria acknowledged, while at the same time holding to core beliefs about distinctions between female and male as good. This legislation will not end the divisions that currently exist in our society on this issue – that will only come through much more loving dialogue, creative thought and self-sacrifice so that both the sex-based rights of women and the acknowledgement and provision for those struggling with their gender identity can co-exist in tandem.
We recommend a focus on:
- Requiring supporting medical/tribunal evidence as opposed to a self-declaration system;
- Increasing the statutory declaration period of living in the acquired gender above 3 months – this is a lifelong commitment;
- Keeping the minimum age of applicants to 18;
- Amending the false application offense to make it clear what is and isn’t a false declaration, and how it would be enforced.
If there are any other points you wish to make about the Bill, you can make them here.
