The Gender Recognition Reform Bill (Scotland) – Call for Views
The Scottish Parliament’s EHRCJ Committee are running a call for views (another one!? Yep) on the Gender Recognition Reform (Scotland) Bill introduced by Scot Gov. on 3rd March.
If you, like us, are thinking ‘ugh, not again! I thought we’d made it perfectly clear that we support this!’ We can definitely understand. We feel like that too. This one though, is something different, it is the next step towards turning the proposed Bill into Law!
We’re a group of cis* women who support and celebrate our trans sisters (and brothers and non-binary siblings too, of course). We are older women, younger women, lesbian and bi women, women of colour, disabled women, intersectional women, and feminist women! – we are diverse, and we know that this Bill is no threat to us. It is a positive step towards equality for all.
This is our quick guide to responding to the short survey. Once we’ve checked on guidance from our trusted sources, such as Scottish Trans, we’ll share a Guide to answering the detailed consultation too.
It’s really important for trans allies to respond.
You can do this between 21st March & 16th May 2022
[*Cis = Cisgender – this describes a person whose gender identity and sex assigned at birth are the same. AKA, I was assigned ‘female’ at birth and I identify with being a woman. It means, from Latin, ‘on this side of’ (in this instance, on this side of what I was assigned at birth) as opposed to trans, which means ‘on the opposite side of’, AKA I was assigned ‘male’ at birth and I do not identify with being a man.]
IMPORTANT! There are 2 separate calls:
- A short survey with seven yes / no questions and a comment box
(We’re covering this one here!)
- A detailed consultation with twelve questions with space to provide written answers (for people who want to give detailed views on specific aspects of the Bill)
To read more about the Bill itself, we recommend visiting the Gender Recognition Reform section on the Scottish Trans Alliance website, here. You can also get a lot more detail on all sorts to do with the Bill and the consultation over there too.
Super quick, and just to be clear… The 1st consultation was all about whether and how reform to the GRA should happen. The 2nd one was about a proposed draft Bill that the Government introduced after reflecting on their learnings from the 1st consultation. This time (!) it’s the Parliament who is asking for your views, not the Government. This is normal. It is a required part of the Parliamentary process to gather written and oral evidence about a proposed Bill. The Equalities, Human Rights and Civil Justice Committee of the Scottish Parliament, with MSPs across different political parties, will use the responses to this call when deciding if they think a) the Bill does what it should, b) if it needs improvement, and c) whether or not they would recommend that MSPs vote in favour of it.
The sad fact is that people who actively oppose and target trans people’s rights will be planning a co-ordinated response to undermine the Bill, so it really is up to all of us to counteract that. It’s really important that you respond, if we didn’t say that already!
So here we go…
Our advice on answering the short survey
Do you agree with the overall purpose of the Bill?
Our answer is “Yes”
Why? – The main purpose of the Bill is to improve the pre-existing process of how trans men and women can get a gender recognition certificate (GRC), which they can then use to change the sex recorded on their birth certificate.
This process has been in place since the Gender Recognition Act was passed in 2004, and the Bill will make changes to the process of applying for a GRC, which many find stressful, demeaning, and costly. These barriers mean that only a few people apply each year. Because of this, many trans men and women don’t have an identity document that matches their other documents or reflects how they live their life.
Should applicants for a GRC require a medical diagnosis of gender dysphoria or supporting documentation?
Our answer is “No”.
Why? – The Bill contains proposals to move from a medicalised view of transitioning to a system where someone can make a statutory self-declaration of who they are. This recognises trans people as experts on their own gender, which we support.
The new system would no longer include the required psychiatric diagnosis of “gender dysphoria” which not only can be difficult to get, but which many trans people don’t want because being trans is not a mental illness!
The current law does not in fact require an applicant to have undergone medical transition, however it does require them to provide evidence about whether they have or not, and if not why. This makes no sense – it’s also intrusive and ridiculously unnecessary.
Should the period of living in an acquired gender be reduced from 2 years to 3 months (with an additional 3-month reflection period)?
Our answer is “Yes”
Why? – The current requirement for 2 years living in an acquired gender means an applicant must provide a massive amount of evidence to prove this.
Many trans men and women may be unaware of the current requirements for getting a GRC, then find it difficult to provide this evidence despite having been permanently transitioned for many years.
Having to wait for 2 years to apply puts trans men and women in a position where they may have to show their birth certificate at important moments in their life, and this will not reflect who they actually are. This can increase their risk of encountering discrimination and harassment, and undermines their right to privacy.
Do you agree with the introduction of a 3-month reflection period before a GRC is granted?
Our answer is “No”
Why? – Trans people already spend a looooong time considering their identity (who they are, as everyone does!) before coming out. They know who they are. Adding a further arbitrary delay of 3 months is unnecessary, insulting, infantilising and unfair. It’s cruel, plain and simple.
Also, an applicant must swear under oath in their statutory declaration that they are living in their acquired gender and that they intend to do so for the rest of their life. They already know that applying is a serious undertaking, that they must have carefully considered.
Do you agree with the removal of the Gender Recognition Panel from the process, with applications instead being made to the Registrar General?
Our answer is “Yes”
Why? – We support the proposal to change the process to one that recognises trans people as experts in their own genders, and that moves away from the concept that a panel of doctors and judges (who have NEVER met an applicant before!) should be able to (or could possibly ever) say whether someone deserves legal recognition or not.
As the Bill would remove the requirement for evidence, there would be nothing for any panel to scrutinise, so removing this unnecessary and costly step makes sense.
Should the minimum age for applicants be reduced from 18 to 16?
Our answer is “Yes”
Why? – Under Scottish law 16 year olds have full legal capacity.
At this age, young people can make similarly important decisions and can update the sex recorded on other identity documents.
At the moment this means a 16 year old in Scotland could hold a birth certificate which does not reflect how they live their lives OR other identity documents that they already have (passport, driving license, library card, bus pass etc. etc.). This is likely to be distressing on a personal level, but could also expose them to discrimination or harassment when starting a new job, or applying for college or university.
Do you anticipate any negative impacts from the provisions in the Bill?
Our answer is we “Don’t know”
Why? – This is a little complicated but this is because there are actually two specific sections of the Bill which we think could have a negative impact on trans people.
These are new section 8S (in section 9 of the Bill) and new section 8U (in section 11 of the Bill).
New section 8S provides that a “person of interest” can apply to the sheriff court to revoke a gender recognition certificate which they believe was obtained fraudulently or was otherwise invalid. AND in the Bill’s Explanatory Notes it states that a “person who has an interest” could be a “spouse, civil partner or child of a person who has obtained a GRC” – We DO support there being a mechanism to apply for a GRC to be revoked where the application was found to be fraudulent, BUT we have big concerns that this section, as its currently written, could be open to abuse.
As it is written now, this provision could mean that trans men and women may have to defend their identity and transition in court if a “person of interest” files to revoke their GRC simply because they do not accept their transition. This is not right.
New section 8U provides that:
“The Registrar General for Scotland may by regulations make provision for or about […] information or evidence to be included in an application […] in addition to the information and evidence required by this Act”
We want to know what information or evidence could be required “in addition” to the standard information and evidence required from applicants. This part suggests that the Registrar General could request information similar to that currently required (i.e. a psychiatric diagnosis of gender dysphoria), which would completely defeat the purpose of the Bill! Which is obviously not good.
Please provide any further comments you have about the provisions in the Bill…
Here you can say whatever you want to about the Bill, but keep it constructive (and mind your language – we know this is frustrating, but shouting and cursing won’t help!)
We’d say… In general, we welcome the Bill because we think it is a positive step in the right direction and makes progress in how trans men and women can be legally recognised as their authentic selves.
HOWEVER, unfortunately, the Bill will not achieve this for all trans people. Non-binary people, and those aged 15 and under are excluded.
The current Bill would not yet fully achieve gender recognition law that meets international best practice, it is not world leading and is not genuinely progressive. We believe that Scotland needs to include legal recognition for trans people who do not identify within the male/female binary, and for trans children and young people under 16 with parental consent in order to be properly great law.
OLDER POSTS BELOW
Scottish Women for Trans Equality in Scotland
Women standing up for the equality of ALL women & non-binary people in Scotland
Sisters Scotland ally guidance for responding to the Scottish GRA Reform draft Bill consultation:
After submitting your response, please share this guide with friends, family, colleagues and organisations, encouraging them to respond.
Remember the closing date is 17th March 2020.
The purpose of this guide is to support trans allies who want to respond to the Scottish Government consultation on a Draft Bill to reform the Gender Recognition Act (GRA) 2004. This guide reflects Sisters Scotland’s () intersectional approach to understanding the structures of privilege and oppression within Scottish society.
Trans and non-binary people are being targeted in mainstream and social media with inaccurate information and campaigns to deny their human rights. In solidarity with our trans and non-binary siblings, we urge trans allies to respond to this consultation. Guidance for trans people wishing to respond can be found here and here.
You do not need to live in Scotland to respond.
Please encourage others to respond as well.
The closing date for submissions is 17th March 2020.
- Why is the Gender Recognition Act (GRA) 2004 being reformed?
Introduced 15 years ago, the GRA allows some trans people to change the sex on their birth certificates and gain formal legal recognition of their sex. A trans person must gain a Gender Recognition Certificate (GRC) before they can change their birth certificate. The Government wants to improve the process, bringing it in line with internationally–recognised good practice.
The current process is lengthy, bureaucratic and invasive. As a result, only about 1 in 10 trans people in Scotland hold a GRC. Although not required to change the sex marker on many other records and documents (e.g. driving license, passport, medical records, etc.) a GRC is essential for changing legal sex. A GRC also makes other processes less burdensome and removes the risk of being outed each time a trans person needs to show their birth certificate.
- Will reforming the GRA impact on single sex spaces and services?
No. The use of single sex spaces and services is governed by the Equality Act 2010 and there are no plans to amend this. Trans men and trans women are already able to access single-sex spaces and services in line with how they are living. () Reform will only change the process for getting a GRC and changing a birth certificate. Neither document is required for using of single sex spaces or services.
- What does the Draft Bill propose?
- A system of Statutory Declaration. The bill proposes replacing the current system, (which requires medical evidence, including a psychiatric diagnosis, and Gender Recognition Panels deciding whether or not to grant a GRC), with a simpler system based on statutory declaration. This means a trans person in future would make a formal, legal declaration confirming they are living in their true gender, and intend to do so for the rest of their life.
- Time period before and after applying. Currently, a trans person must have lived in their true gender for two years before they can apply for a GRC. The Draft Bill proposes that applicants state in their statutory declaration that they’ve lived in their true gender for three months. After applying, they also must wait a further three months before a GRC can be granted.
- Lower applicant age. The Bill proposes a reduction in the age at which an individual can apply for a GRC from 18 to 16, allowing younger people to benefit from the reforms. (It will have no impact on access to medical treatment for young trans people.)
- Do provisions of the Bill apply to non-binary people?
The Bill does not include any provisions for offering legal recognition to non-binary people. There is an opportunity within the consultation form to recommend inclusion.
- What are the five questions in the consultation?
Question 1: Do you have any comments on the proposal that applicants must live in their acquired gender for at least months before applying for a GRC?
Reducing the two year time period in which a trans person must show they’ve lived in their true gender is welcome. However, Sisters Scotland recommends that trans allies respond to the question by asking that the arbitrary three month period be removed. They can cite that there is no evidence that the period is beneficial or necessary.
Question 2: Do you have any comments on the proposal that applicants must go through a period of reflection for at least 3 months before obtaining a GRC?
Sisters Scotland suggests that respondents ask that the three month waiting period after application be removed. Allies can say that there is no evidence that the three month wait after applying is necessary or helpful. They may wish to add that they are aware trans people already give considerable thought to their decision to transition before applying.
Question 3: Should the minimum age at which a person can apply for legal gender recognition be reduced from 18 to 16?
Sisters Scotland recommends responding to say the reduction in age is welcome. It would bring the process into line with other rights that young people gain from the age of 16 in Scotland (e.g. to work, vote, marry, be held legally accountable for their actions, etc.)
Also, Sisters Scotland recommends calling for a route for young trans people under 16 to update their birth certificates (supported by parents/guardians) to bring these in line with other records and documents they can change (e.g. school, health, passports.) Since young people use birth certificates for identity more than adults, being able to change these to their lived sex would help ensure their privacy.
Question 4: Do you have any other comments on provisions of the draft Bill?
Sisters Scotland suggests that allies say they welcome the Draft Bill with a brief comment about the benefits of trans people no longer needing to collect and present highly personal evidence and medical reports to be recognised as who they are.
Inclusion of Non-binary people
The Draft Bill does not include provision for legal recognition of Non-binary people, who do not identify as exclusively male or female. This will leave them with inconsistencies in their records and documents and a lack of recognition in daily life.
Sisters Scotland suggests responses say that legal recognition of non-binary people should be included so they can be recognised in the law, have equal rights and be regarded with respect. If responding as a non-binary person, it may be helpful to describe the impact of legal recognition would have on you.
Question 5: Do you have any comments on the Draft Impact Assessments?
The Scottish Government completed assessments to find out if proposed changes to the GRA would impact on other people. Draft reports of all impact assessments can be found as annexes to the consultation document here.
The Equality Impact Assessment concluded that proposed changes to GRA would have no significant impact on those with “protected characteristics” under the Equality Act 2010. This includes women and girls under the protected characteristic “sex.”
Sisters Scotland recommends allies reply that they support conclusions of the Impact Assessments, including the Equality Impact Assessment. They can add that they understand reforms would not change the current right of trans people to use single-sex facilities related to their lived sex (e.g. toilets, changing rooms, support services.)
Allies can also state that the main Scottish feminist charities already implement policies that are inclusive of trans women and that they agree with the joint declaration of support for GRA reform issued by several Scottish women’s charities. Finally, they can share any other reasons they support GRA reform, highlighting that they do not believe there is a conflict between the rights of trans people and of women and girls.
 Sisters Scotland is an informal Feminist network of cis women and non-binary people, trans women and pro Feminist allies, committed to equality for ALL women and non-binary people in Scotland.
 The Equality Act 2010 only allows for exclusion of trans people from single-sex services that align with how they are living, in very limited circumstances where this is a “proportionate means of achieving a legitimate aim,” and on a case by case basis. The law does not allow for blanket bans of trans people.