Gender law delayed for more consultation on impact on women

Equalities Secretary Shirley-Anne Somerville has unveiled government plans on gender recognition legislation.

Equalities minister Shirley-Anne Somerville today revealed the government's plans for reforming the 2004 Gender Recognition Act, to make it easier for transgender people to get legal recognition of their "lived gender".

And she said there would be a "full consultation on the precise details" of the legislation before it is is put to politicians in Holyrood.

Her statement had been highly anticipated as the debate around a potential conflict the reform could create between women's rights and trans people's rights has grown increasingly heated.

The government had previously consulted on reforms to the GRA, and how Gender Recognition Certificates were granted, and received 15,500 responses. But they were criticised for not consulting with women's groups in the drafting of the wording of the consultation, and failing to carry out proper assessment on the impact on women of any changes.

Today Ms Somerville said that a new consultation would be opened which would include draft impact assessments, including "a comprehensive updates Equality Impact Assessment to ensure that all rights are protected in a balanced way", and that legislation would be brought forward when "we are content that responses have been analysed, concerns allayed and that we can introduce a Bill that has the support of this Parliament and the public."

She also laid out the government's proposed reforms to enable transgender people to gain a GRC more easily, including removing existing requirements in the 2004 act to provide medical evidence of gender dysphoria.

Other proposals include an alternative statutory process including a "solemn declaration" that applicants "intend to live in their acquired gender permanently, a declaration that they had already been living in their acquired gender for three months (reduced from the current two years) and a mandatory three month "reflection period" before a GRC could be granted.

She added: "It is, and will remain, a criminal offence to make a false statutory declaration, the potential punishment for which includes up to two years imprisonment."

And in a move which surprised campaigners, she said that schools guidance on trans issues, which had been written by an LGBT youth work charity and supported by the government, would no longer be used because of "valid concerns" that the "good general principle of inclusivity... risks potentially excluding other girls from female-only spaces. That cannot be right."

She said the government was already writing its own new guidance for schools in how to deal with issues around girls toilets and changing rooms which would be available by the end of the year.

Ms Somerville also announced a working group on sex and gender to look at how the two were being conflated in the collection of data, and that it would "consider what guidance should be offered to public bodies" on the collection of such statisticsScottish Trans Alliance and Equality Network welcome confirmation that the Scottish Government plans to take forward Gender Recognition Act reform by drafting a bill for a statutory declaration application process.

She added that thre were no plans at this time to "extend legal gender recognition to non-binary people" [those who do not identify as male or female] but that another working group would be set up to consider possible future changes.

"It is clear that not all the concerns raised over the past year relate to the specifics of the proposals to reform the GRA. Instead they are about wider societal and policy issues connected to sex and gender. We recognise that unless we build a strong foundation of clear policy and guidance then many concerns, particularly from some women, will not be allayed while at the same time trans rights may not be upheld."

The Scottish Trans Alliance, which has been lobbying for reform, said it welcomed the announcement of the draft Bill but hoped that it would be put before Parliament quickly and that it would continue to "make the case for non-binary recognition".

Becky Kaufmann, Justice Policy Officer at the Scottish Trans Alliance, said: “We warmly welcome that the draft bill will remove the offensive and intrusive requirement that trans women and trans men provide psychiatric and medical reports in order to change their birth certificates.

"It is important because trans women and trans men will no longer have to depend on a tribunal panel of strangers to decide the reality of their own lives. Such a Bill would be short and not complicated to draft, so the Scottish Trans Alliance and Equality Network are calling on the Scottish Government to publish the draft bill swiftly after the summer recess."

James Morton, Scottish Trans Alliance manager, added: “It has already been 16 months since the initial consultation on Gender Recognition Act reform closed. The delay in publishing a draft Bill has been very detrimental to the quality of debate in some parts of the media and on social media.

"It is vital that the Scottish Government publish the draft Bill as soon as possible to enable appropriate scrutiny of the exact details rather than further unhelpful speculation. Long delays between announcements and actions embolden those who are prejudiced against trans people, and create intense distress for many vulnerable trans people.”

However he said that the draft Bill could still mean a law that falls some way short of a system of legal recognition that would provide dignity, equality and recognition for all trans people in Scotland.

“We call on the Scottish Government to allow 16 and 17 year olds to change their birth certificates. In Scotland, they 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 no sense to deny them the privacy protection of being able to update their birth certificate.”

In her statement Shirley-Anne Somerville said the Bill would not propose legal gender change recognition for children under 16 but that she would "consider further whether the minimum age of applicants should be reduced from 18 to 16."

Dr Kath Murray, of the policy analysis collective, MurrayBlackburnMcKenzie, which had been raising concerns about the conflation of sex and gender in data, said: "We welcome the Scottish Government plans to extend its consultation on GRA reform and to undertake a detailed Equality Impact Assessment. A more measured and inclusive approach should result in better policy and legislative outcomes, for all affected groups.

"We note the Scottish Government has reaffirmed its commitment to statutory gender self-declaration. Given the current evidence gaps, we hope that the Scottish Government will take an open-minded approach and consider a range of options.

"Given the ongoing confusion over the relationship between Equality Act 2010 and the Gender Recognition Act 2004, we welcome the decision to develop guidance that will bring clarity for providers and policy makers.

"We also welcome the decision to establish a working group on sex and gender in data, and the acknowledgement that sex-disaggregated data is relevant across a range of policy areas."