Earlier this year, Social Justice Secretary Shona Robison gave an update to the Scottish Parliament on the status of GRA reform in Scotland. Ms Robison called for a change in the way people debate such issues as GRA reform.
"I want to be clear: I will listen to the views of everyone; parliamentarians in this chamber, and those outwith, in a respectful manner throughout the passage of the Bill. I urge everyone to do the same,” she said.
“When it comes to gender recognition, and also wider issues concerning trans people, from healthcare to access to services, discussion has often become heated.”
She went on to describe “the tone of debate on social media” as “angry, unpleasant and abusive, both of trans people and of those who oppose gender recognition reform”.
“I am concerned about the impact of this all round, but particularly how it further stigmatises and marginalises trans people in Scotland,” the minister said, This is not just an unacceptable way to behave towards each other; it is unhelpful in getting a point of view across. We can disagree on issues without being offensive or abusive.”
At the moment, according to LGBTQ+ organisation Stonewall, fewer than one in 10 trans people in the UK have legal recognition of their gender, meaning that they cannot change their sex on their birth certificate or legal records.
This can cause widespread admin and legal difficulties in multiple areas of their lives, including when and how to get married, paying taxes, getting pensions, and being buried.
The difficulties in getting a gender recognition certificate (GRC) are rooted in the Gender Recognition Act (2004), so much so that fewer than 5,000 people had obtained a GRC by 2018.
As a result, campaigners have been pushing to modify the Act and simplify the process for trans people. Here’s more on what the Gender Recognition Act (GRA) states and what changes are being proposed to it in Scotland.
What is the Gender Recognition Act?
The GRA governs how trans people can currently get their gender identity recognised. In it, it is stated that trans people must undertake a series of medical assessments and psychiatric interviews in order to prove their gender identity.
Trans people are also required to have a formal diagnosis of gender dysphoria, which is the term referring to a sense of unease or discomfort that a person may have because of a disparity between their biological sex and their gender identity.
It is also required for trans people to live in their “acquired gender” for two years and hand over evidence supporting all of this to a gender recognition panel, which is made up of medical and legal experts who have often not previously met the applicant.
Upon reviewing this evidence, the panel will then either approve or deny an application. If the applicant is married, consent of the spouse is also required in order to grant an application. If the spouse does not consent, then the applicant will be issued an Interim GRC.
Applicants must also be aged 18 years old or over. All in all, the process can take up to five years.
What changes are being proposed to the Gender Recognition Act?
At the moment, the UK has some of the most restrictive gender recognition processes in Europe.
For comparison, countries like Portugal, Ireland, and Norway have passed laws in the last few years that made it possible for trans people to obtain legal recognition of their gender using self-determination only.
Campaigners in the UK argue that the lengthy process to get a GRC puts unnecessary strain on the NHS, due to the required involvement of multiple practitioners, and requires too many invasive medical examinations.
In November 2017, the Scottish government began formally reviewing the GRA “so that it is in line with international best practice”. In the Ministerial Foreword to the review, it was acknowledged that the GRA (2004) was “out of date” and places “intrusive and onerous” requirements on the applicant.
The Scottish government therefore went on to propose eliminating the requirement to provide medical evidence and proof of living in the ‘acquired gender’ for two years before applying.
In 2018, a public consultation was held across the UK which gathered over 100,000 responses. It found that 64% of people who contributed believed the requirement for a diagnosis of gender dysphoria should be removed, 80% supported the removal of the requirement for a medical report detailing all treatment, and 79% called for the removal of the requirement for individuals to provide evidence of having lived in their ‘acquired gender’ for a period of time.
These results were published in September 2020, but the UK government did not decide to change the GRA. Instead, it did commit to some small, administrative improvements to the process of legal recognition, including reducing the fee to apply to a nominal amount of £5 and moving the process online.
This was labelled as “a missed opportunity to simplify the law on gender recognition whilst maintaining robust safeguards” by the Equality and Human Rights Commission. In Scotland, however, the Government proposed a draft bill to reform the GRA in December 2019, alongside a public consultation.
Does amending the Gender Recognition Act interfere with the Equality Act?
Some of the opposition to amending the GRA is grounded in the concern that such reform could lead to the removal of single-sex services or women-only spaces. However, such spaces would still be protected separately through the Equality Act 2010.
The Equality Act protects the rights of women to access single-sex services. In addition, the provision which allows organisations to treat trans people differently does not hinge on whether the trans person has a GRC or not.
To that extent, for sports teams or single-sex services where there is consideration of excluding trans people, they will still have the right to do so under the Equality Act which will not be affected by GRA reform.