Consultation launched on new law to reform gender recognition process

Shirley-Anne Somerville has launched the government's draft Bill on gender recognition reform.
Shirley-Anne Somerville has launched the government's draft Bill on gender recognition reform.
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A consultation on new legislation which would reform the Gender Recognition Act has been launched by the Scottish Government.

The draft Bill would simplify the process for people who wish to change their gender legally by allowing "self-declaration" rather than a medical diagnosis of gender dysphoria.

The new legislation, which was consulted on previously but withdrawn after concerns were raised about the impact on women's rights, would de-medicalise the process and reduce the two year time-frame for a trans person to live in their preferred gender to three months. It would also introduce a three month "reflection period" between applying for and receiving a Gender Recognition Certificate.

READ MORE: Gender law delayed for more consultation on impact on women

Transgender people would no longer apply to the UK Gender Recognition Panel for a GRC, but instead applications would be dealt with by the Registrar General, and the minimum age at which someone could apply to legally change their gender would be reduced to 16.

A new offence of false application would also be introduced, which could result in two years in prison for people who give a false declaration.

Today, Equalities Minister Shirley-Anne Somerville said that the reforms followed "international best practice" and were required as the current system was "traumatic and demeaning" for transgender people. She said she hope this second consultation, which runs until March, would "clearly explain the need for reform" and address people's concerns.

She added: "A previous consultation on reform showed a majority in support for our proposals but also some concerns. Consulting on the detail of a draft Bill and associated impact assessments will, I hope, clearly explain the need for reform and address those concerns.

“There have always been trans people in society and for the past fifteen years they have been able to legally change their gender through obtaining a Gender Recognition Certificate. We are proposing to make the current process less stressful whilst continuing to recognise the seriousness of the decision to live your life in a different gender.

“Women’s rights and protections will be as strong under this Bill as they are today, as we remain committed to protect, respect, and advance the rights of women and girls. We are not proposing to change the Equality Act or the exceptions within it that protect single sex spaces and services."

The government first consulted on the proposals in 2018 and 60 per cent of the 15,500 responses received supported reform. However since then, the debate on gender recognition has become increasingly heated.

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Many grassroots women's groups are concerned about the potential for predatory men to abuse the system by self-declaring themselves as women to be able to enter public sex-segregated spaces such as changing rooms and toilets, as GRC's are rarely asked to be seen. They have also raised concerns about transwomen in particular being housed in women's prisons or domestic abuse refuges and being placed on women's hospital wards.

A factsheet published with the draft Bill, appears to recognises such concerns, stating the government is aware that some organisations "have changed policies which are not required in law" in a "well-intentioned attempt to be trans inclusive" adding: "they may have unintentionally made changes that make women feel uncomfortable and less safe.

"The Government believes all organisations need to take account of everybody’s rights when any changes in policy are being considered, to ensure all rights, particularly those of women and trans people, are protected. This includes the protection of women’s safe spaces."

However the government also said the reforms follow best practice adopted in other countries such as the Republic of Ireland, Denmark and Norway, Malta and Belgium.

Ms Somerville added: “We will carefully consider all responses to the consultation and I urge everyone contributing to do so in a considered and respectful way.

"Clearly setting out our proposals in a consultation on a draft Bill, I hope will help explain the need for reform, alleviate what I know are concerns, and address any misunderstandings of our proposals.

"The reforms do not alter the long standing rights of trans men and women to change gender. And women’s rights and protections will be as strong under this Bill as they are today.

"That’s because it does not change in any way the exceptions in the Equality Act 2010, which allow trans people to be excluded when this is a proportionate means of achieving a legitimate aim. This means that single sex services are protected as are single sex employment rights and health services. Those exceptions are very important and the Scottish Government supports them.

"The proposals are intended to increase the rights of trans people and for them to feel respected for who they are – this is not at the expense of any other group. I will play my part to hold fast to our principle of trans inclusion whilst recognising, protecting, respecting, and advancing the rights of women and girls.

"Many of the issues I have seen raised with these proposals are not to do with this draft Bill. Rather they are to do with a misunderstanding of the rights currently in place for trans people, and also the inequality that continues to impact women and girls more generally.

"We recognise there are men who seek to abuse women. This is not new and is not just an issue for Scotland or indeed the UK but across the world. And it is not the fault of trans people. It is the fault of abusive men, which is why I am clear the hard won rights and protection in law of women will not be affected in any way by these reforms."

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Lynn Welsh, Head of Legal at the Equality and Human Rights Commission Scotland, said the new legislation offered "a welcome opportunity to remove unnecessary practical barriers trans people face in securing legal recognition of their gender identity.

“Nothing in the Bill will threaten the continued operation of the Equality Act provisions protecting women-only services and spaces, which recognise the particular needs of women and the need for protection from sex-based violence.”

The consultation was welcomed by many Scottish LGBTI organisations who said the Bill was a "step in the right direction towards greater equality for transgender people", but that the process to change a trans person’s sex on their birth certificate would still remain more difficult than changing their sex on other identity documents such as a passport or driving licence.

James Morton, Scottish Trans Alliance Manager, said: “We welcome the Scottish Government’s publication of their draft bill to reform the Gender Recognition Act. The current process to change the sex on a trans person’s birth certificate is a humiliating, offensive and expensive red-tape nightmare which requires them to submit intrusive psychiatric evidence to a faceless tribunal panel years after they transitioned.

“What’s written on a trans person’s birth certificate is not the deciding factor for their access to single-sex services or sports competitions. The reasons trans people change the sex on their birth certificate are so that they no longer have the worry of being ‘outed’ by that last piece of paperwork not matching their other ID, and to be sure that, when they die, nobody can erase their hard-won identity and right to be recorded as themselves.

“We are very pleased that the draft bill is based on statutory declaration not psychiatric evidence and that it reduces the age for application from 18 to 16. However, we are disappointed that the Scottish Government has chosen not to include under 16s or non-binary trans people in the draft bill. We urge the Scottish Government to expand the bill so that all trans people can have equal inclusion and acceptance within Scottish society.”

Dr Mhairi Crawford, Chief Executive of LGBT Youth Scotland, added: "LGBT Youth Scotland welcomes today’s announcement and are pleased that transgender young people over 16 are included in the draft bill.

“We support the proposed changes to enable 16 and 17 year olds to change their legal paperwork to align with their gender identity, recognising trans young people’s right to privacy and to be protected from discrimination. In Scotland, 16 and 17 year olds are allowed to vote, leave school, get married and have children. They can already change the sex on their passports and education records. It makes little sense to deny them the protections that updating their birth certificate affords them.

“We share young people's disappointment that there is no inclusion of non-binary people in this draft bill and no process for under 16s who wish to obtain legal recognition of their gender. We do, however, recognise that progress takes time and regard today’s draft bill as a steppingstone to full legal recognition for trans people. LGBT Youth Scotland will strive to bring trans young people’s views and experiences to the fore during this consultation and we will work closely with our Youth Commission on gender recognition as we develop our organisational response."

The MurrayBlackburnMackenzie policy group, which has raised concerns about the conflation of sex and gender information, said: "We welcome this further consultation. We now need a transparent process, in which substantial questions about law, evidence and analysis receive substantial answers.

"The Scottish Government must engage fully with people from all perspectives, particularly groups who have expressed concern about the impact of moving to a system of self-declaration."