The new Scottish Government consultation which proposes to change how trans people can legally alter the sex on their birth certificate, is flawed as it doesn’t clarify that the law is being fundamentally rewritten, according to a former top civil servant and other policy experts.
Lucy Hunter Blackburn, a former deputy director within the Scottish Government, along with Edinburgh University criminal justice policy researcher Dr Kath Murray and former UK government communications specialist Lisa Mackenzie, says the government needs to explain why it wants to remove the medical gender dysphoria diagnosis, and how it would then define which people are “trans” and who will be able to gain a Gender Recognition Certificate.
Equalities minister Shirley-Anne Somerville last month launched a public consultation on proposed reforms to the Gender Recognition Act.
The government aims to simplify the process of gaining a Gender Recognition Certificate which, Somerville said, many transgender people find demeaning.
Proposals include removing a diagnosis of gender dysphoria which lay at the heart of the original legislation passed in 2004, and to replace it with “self-declaration”. There are also plans to remove the need to “live in the acquired gender” from two years to six months, to scrap the fee, and to reduce the application age to 16.
However, there are concerns that abolishing the medical aspect of obtaining a GRC, a move not required under human rights law, would undermine the purpose of the original 2004 Act. It could also leave the law without a clear definition of who is and is not entitled to apply for a GRC.
In a blog on their MurrayBlackburnMackenzie website, the policy experts write that the consultation and proposals to change the law reflect “a significant shift in thinking about the fundamental purpose of the GRA” with “a fundamentally different rationale to the 2004 Act”.
The lack of a definition of what would qualify someone as entitled to apply for a GRC, they suggest, could “expand the GRC holding population” to include people “who would not have previously qualified for a medical diagnosis of dysphoria, people who have sought no medical advice or diagnosis of any sort; people who have done less to socially transition than is currently required”.
There is no definition of “trans” in the consultation. However, Stonewall, the LGBT+ campaigning organisation defines it is an “umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth” that may include such terms as “gender-queer (GQ), gender-fluid, non-binary, gender-variant, crossdresser” etc.
A number of new grassroots women’s groups, which have formed in response to the potential changes to the GRA, have raised concerns that the wider definition of “trans” and easier access to a GRC could impact on women’s legal rights to single-sex spaces as laid out in the Equality Act 2010, a position they fear could be exploited by predatory men.
Yesterday, Hunter Blackburn said: “Ministers are proposing to make Gender Recognition Certificates available to a larger group of people, including those without a diagnosis of dysphoria, with no external oversight of applications.
“It is essential that they set out clearly as part of the consultation what they think the exact difference under the Equality Act is between a transgender person with a GRC and one without, in terms of legal rights of access to single sex services and occupations. Otherwise consultees will not have been properly informed and a reasonable, meaningful consultation will not have been possible.”
Since 2004, around 400 GRCs have been issued to people who were born in Scotland and around 30 people a year obtain legal recognition of their “acquired gender” under the GRA. Through the reforms, the government estimates an increase in the number of people seeking a GRC, with around 250 a year applying.
Hunter Blackburn added: “Losing the need for a diagnosis of gender dysphoria is the most important change proposed. It is central to the fundamental rethinking of the purpose of the process, away from a pragmatic response to a medical condition, to an entitlement to affirmation of identity, and the translation of that into a change of sex in law.”
She added: “The change in the rules for issuing a GRC is also expected to make possession of a GRC more common. Reform to any system which extends access beyond those currently entitled and envisages expansion on this scale is by definition doing more than improving existing administrative systems.”
A Scottish Government spokesperson said: “We have been clear and up-front from the outset that our proposals reform how people apply for gender recognition.
“As the Equality and Human Rights Commission Scotland has said – nothing in the draft reform Bill we propose will threaten the continued operation of the Equality Act provisions protecting women-only services and spaces.”