Gender Recognition Reform (Scotland) Bill: consultation analysis

Executive Summary

Introduction

This summary presents the key findings from the analysis of responses to the Scottish Government's consultation on the draft Gender Recognition Reform (Scotland) Bill (the draft Bill). The draft Bill would amend the Gender Recognition Act 2004 (the 2004 Act) to introduce a new system for obtaining legal gender recognition in Scotland.

The draft Bill would introduce a number of changes. The consultation specifically sought views on two of these – the requirement for applicants to live in their acquired gender for 3 months prior to submitting an application, and for a 3-month reflection period after application before legal gender recognition is granted. Respondents were also asked whether the age at which an application for legal gender recognition can be made should be reduced from 18 to 16 and were invited to comment on draft impact assessments presented with the draft Bill.

The consultation was launched on 17 December 2019 and closed on 17 March 2020. The consultation paper is available at https://consult.gov.scot/family-law/gender-recognition-reform-scotland-bill/.

Profile of respondents

In total 17,058 responses were available for analysis. Most responses (16,843 of those available for analysis) were submitted by individual members of the public, with the remaining 215 submitted by organisations.

Those resident in Scotland accounted for 55% of respondents, with 32% resident in the rest of the UK and the remaining 14% resident in the rest of the world.

Overall perspectives

Most respondents to the consultation tended to take one of two overall positions on the proposals. These two groups are described as being either broadly in support of, or broadly opposed to, a statutory declaration-based system. This reflects the nature of the proposals as they are referred to within the draft Bill, although respondents generally referred to their support for, or opposition to, self-declaration or self-identification.

An analysis of comments made suggests that a small majority of organisations broadly supported changing to a statutory declaration-based system. Around 4 in 10 organisations did not support changing to a statutory declaration-based system and around 1 in 10 either did not take a view or their view was not clear.

Those broadly in support of a statutory declaration-based system

These respondents tended to see the case for change as being clear and pressing, with the current system in desperate need of reform. They often thought the draft Bill offers some improvement relative to the current approach, primarily because of the change to statutory declaration and, more generally, because it would make acquiring a Gender Recognition Certificate (GRC) simpler. However, they generally disagreed with central elements of the proposals, including that there should be a requirement to live in the acquired gender or that there should be a reflection period. These respondents tended to agree with reducing the age at which a person can apply for legal gender recognition to 16.

This was the perspective of many individual respondents and all, or the considerable majority of Children and Young People's Groups, Lesbian, Gay, Bisexual and Transgender (LGBT) and Trans Groups, Union or Political Parties, Local Authorities, Health and Social Care Partnerships (H&SCPs) or NHS respondents and Third Sector Support Organisations.

Those broadly opposed to a statutory declaration-based system

These respondents generally thought a convincing case for change has not been made, and that the current system is broadly fit for purpose. This was often connected to a view that the draft Bill should simply be scrapped and to specific concerns about the removal of the need for a medical diagnosis of gender dysphoria before receiving a GRC. These respondents were often very concerned about the potential impact of the proposed changes on society in general, but on the safety and wellbeing of women and girls in particular. They generally disagreed with reducing the age at which a person can apply for legal gender recognition to 16.

This was the perspective of many individual respondents and the considerable majority of the Women's Groups and Religious or Belief Bodies that responded.

Overarching themes

Overarching themes raised in comments across all questions included views on the tone of the debate, the case for change and the potential impact of the changes proposed.

An area of shared concern was around the nature and tone of the debate and dialogue associated with trans issues more widely and the proposals in particular. There was a consensus that the debate has become highly polarised and, from some respondents' perspective, was seen as toxic and underpinned by a culture, and in particular a social media culture, in which people are being bullied and harassed by those taking a different view.

It was also suggested both that the Scottish Government has not listened to the concerns and needs of the trans community, and that the Scottish Government listens primarily to the trans community while failing to engage with those who have concerns about the impact of the proposed changes on women and girls or based on their beliefs.

Those who saw a clear and pressing case for change often considered that the current approach is outmoded and discriminatory. Both through their own stories and more generally, respondents spoke of the detrimental impact the current approach is having on trans peoples' health, wellbeing and life chances. Some of these respondents cited both international law and best practice in other countries in support of their case for change.

Other respondents took a very different view, namely that the Scottish Government has not provided sufficiently robust evidence to support its case for change and that the 2004 Act does not require amendment. It was frequently argued that the existing system provides important safeguarding measures, is compliant with both international law and human rights obligations, and meets European law. Far from being a minor change, the proposed reforms were seen as a fundamental change to encompass a larger and more diverse group of people than those originally envisaged by the 2004 Act.

A serious concern expressed by many respondents broadly opposed to a statutory declaration-based system was the likely impact on women and girls. It was often argued that the consultation paper fails to explain how abuses of a statutory declaration-based system will be prevented. There were particular concerns that the removal of the requirement for a diagnosis of gender dysphoria will make the system open to abuse, allowing predatory men to access women's safe spaces.^[1] It was also argued that women's sex-based rights will be compromised, with potential effects on women's sport, medical services, rights to equal pay and women only shortlists.

However, many of those broadly supporting a statutory declaration-based system rejected the idea that the move would be harmful to women, with some of those making this point noting that they were women and feminists.

Procedure before application for legal gender recognition

Q1: Do you have any comments on the proposal that applicants must live in their acquired gender for at least 3 months before applying for a GRC?

Respondents often raised questions as to what is meant by 'gender', by 'acquired gender' and, in particular, to 'living in an acquired gender'. Both those broadly in support of and those broadly opposed to a statutory declaration-based system raised these issues.

It was seen as implying a common and clear understanding of what it means to be a man or a woman, including that living as a man or women comes with an agreed and commonly understood set of lifestyle choices and behaviours. This was seen as an outmoded outlook which re-enforces the unhelpful and harmful gender stereotypes which many people now reject.

Those broadly in support of a statutory declaration-based system

Those who made general statements in support of the draft Bill often referred to the importance of creating a simple, straightforward system which treats people with dignity and respect. The shortening of the current 2-year timescale for receiving a GRC was often described as representing a significant improvement, although many thought the proposals could and should go further.

There was a concern that the description of a gender as being 'acquired' is in itself both wrong and offensive as it implies a degree of choice or preference that is simply not the case. Respondents also thought it was not clear whether this stipulation requires the applicant to make any change at all to their outward appearance or lifestyle and whether people would effectively be expected to perform a role in public, based on how they dressed or acted; this was seen as a demeaning and potentially very harmful imposition. It was also suggested that many trans people may not be able to live in their acquired gender because of fear of discrimination or concern for their safety.

There was also a concern about how applicants might be required to evidence having lived in their acquired gender for 3 months, with the equivalent evidence-related requirements in place for other key documents like passports, medical records or work or education-related paperwork noted. Central to these concerns was that evidence can be subjective and dependent on an individual having access to the resources necessary to gather such evidence.

Those broadly in support of a statutory declaration-based system generally thought that no period of living in an acquired gender should be required. Reasons given included that there is simply no evidence to suggest that any time period is necessary or brings any value. For many of these respondents, the 3-month period effectively equated to nothing more than an unreasonable, arbitrary and potentially damaging waiting period.

Those broadly opposed to a statutory declaration-based system

Those broadly opposed to a statutory declaration-based system objected to the proposals because they saw the proposed system as being one of self-declaration, or at least as a clear move towards a self-declaration-based approach. The concerns of many of those objecting to a self-declaration system were linked very strongly to the safety of women and girls and in particular to safe spaces.

They often argued that without a requirement for a diagnosis of gender dysphoria the process would be open to abuse from predatory men, risk leaving those transitioning without proper medical support and increase the chance that other conditions may go undiagnosed and unexplored. There were fears that, without a diagnosis of gender dysphoria, potentially vulnerable adults and adolescents may commit to a process that they will later come to regret.

While for some of those broadly supporting a statutory declaration-based system the concern was that people would be required to evidence that they had lived in their acquired gender, for those broadly opposed to a statutory declaration-based system the concern was that they would not. They tended to focus on two issues – how someone can demonstrate that they have done something that is not clearly defined in the draft Bill and, in the absence of such evidence, how the system can be policed.

These respondents also tended to think that a period of 3 months living in the acquired gender is too short a time, often much too short a time, in which to make such a life-altering decision. Respondents often queried why this should appear to be so rushed. Serious concerns were also raised with respect to the combination of reducing the time to 3 months and lowering the age limit from 18 to 16.

Respondents who argued 3 months living in the acquired gender to be too short sometimes proposed a specific alternative – most frequently that the existing 2-year period should be retained.

Procedure after application for legal gender recognition

Q2: 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?

Those broadly in support of a statutory declaration-based system

Those who did not agree with an applicant for a GRC being required to live in their acquired gender for a prescribed period, generally also did not agree with the proposal that there should be a period of reflection for at least 3 months before obtaining a GRC. Fundamental to this was the view that many trans people will have been aware of their gender, and 'reflecting' on their situation, for all of their lives; contrary to the implication of having a period of reflection, they have not made an ill-considered decision or come to a quick decision.

The other key reasons given for objecting to the reflection period included that there is no equivalent period in place for changing other forms of identity documentation and that it would be unnecessarily complicated and bureaucratic for no good reason or benefit. The need for a statutory declaration in front of a Notary Public was considered a sufficient requirement to underline the gravity of the decision.

As with living in an acquired gender, there were queries as to what is meant by a period of reflection, along with fundamental concerns that, as with other additional verification approaches, it implies that trans people cannot be trusted to make their own informed decisions.

Those broadly opposed to a statutory declaration-based system

Those broadly opposed to a statutory declaration-based system sometimes suggested that the inclusion of a period of reflection is a tacit acknowledgement that some people will change their minds. This was often connected to a view that the reflection period should be longer than the 3 months proposed, or that it would be unnecessary if applicants were required to spend a longer period living in their acquired gender.

There was a concern that it is not only unclear what is meant or intended by a period of reflection but also, and very much in line with comments about living in the acquired gender, that it is not clear how someone would be able to prove they had reflected.

Many argued that the 3-month period proposed is too short, sometimes much too short. They often pointed to the magnitude of a legal gender change, particularly for young people.

Reducing the minimum age for obtaining legal gender recognition to age 16

Q3: Should the minimum age at which a person can apply for legal gender recognition be reduced from 18 to 16?

A majority of respondents who answered the question – 56% – thought that the age at which a person can apply for legal gender recognition should be reduced from 18 to 16, while 42% thought it should not, and 2% did not know. Those respondents who identified themselves as resident in Scotland were evenly divided, with 49% agreeing that the age should be reduced to 16, 49% disagreeing and 3% saying they did not know.

Age should be reduced to 16

Respondents who thought the minimum age should be reduced to 16 argued that a young person in Scotland is legally an adult at 16, and that the proposed change would bring gender recognition into line with many other rights that can be exercised at 16. The United Nations Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR) and the Yogyakarta Principles were all cited by respondents as being in keeping with extending the rights of young trans people.

It was also argued that many 16-year-olds are mature, capable and responsible enough to make a decision on their legal gender identity and will have spent a long time reaching this decision.

Potential positive impacts on mental health were often raised and it was predicted that legal gender recognition at 16 could help to alleviate dysphoria and distress, improve wellbeing and quality of life, and reduce depression and suicide rates. Conversely, making young people wait longer to have their gender recognised was suggested to be cruel or unnecessary, and likely to have corresponding negative impacts on mental health.

Respondents noted that at 16 or 17 many young people are becoming independent, moving away from home, beginning full time work, or starting a university or college course. The benefits of being able to obtain legal gender recognition and amend their birth certificate before these life changes were highlighted.

Respondents noted that legal gender recognition is about documentation and were of the view that it will not impact other aspects of the transition process such as social presentation, accessing gender clinics or the waiting period for any medical treatment.

While welcoming the proposal to reduce the minimum age for legal gender recognition to 16, some respondents encouraged the Scottish Government to go further and make provision for children under 16. It was suggested that as children over 12 are deemed to have legal capacity to make decisions in certain circumstances, this principle could apply to gender recognition.

Age should not be reduced to 16

In their further comments, a large majority of those who disagreed at Question 3 made it clear that they did not think that the age should be reduced at all. Some respondents simply stated a view that a 16-year-old is still a child, while others cited the UNCRC as defining children as those under 18 years of age. Respondents frequently argued that 16 is simply too young to legally change gender, citing a lack of emotional maturity or life experience to make such an important, apparently irreversible decision.

It was argued that other rights that can be exercised at 16 (as listed in the consultation paper) are reversible in a way that legal gender recognition does not appear to be. Activities that the state has decided are not appropriate for those under 18 were also referenced, including getting a tattoo and buying alcohol or tobacco, and it was seen as inconsistent that 16- and 17-year-olds should be barred from these activities on safeguarding grounds while permitted to change their legal gender.

A Scottish Sentencing Council proposal that sentencing young people should take account of evidence that the brain does not mature fully until at least 25 was referenced by many respondents who argued that, in the light of this, it would be inconsistent for the Scottish Government to reduce the age at which legal gender recognition can be obtained from 18 to 16.

The many pressures on young people were referenced – for example with respect to schoolwork and exams – and it was suggested it would be wrong to introduce the possibility of legal gender change at such an important time. Respondents also noted that the teenage years can be difficult and confusing for many, and that hormonal and physical changes during puberty can lead some to feel uncomfortable with their bodies.

Although the consultation relates only to the process for legal gender recognition, many respondents argued that young people can be set on a medicalised pathway leading from puberty-blocking drugs to surgery and that, once started, this course of events may be difficult to stop or reverse. Removing the requirement for a diagnosis of gender dysphoria was often seen as leaving young people without the appropriate professional support to make a life-changing decision.

There were calls for the Scottish Government to listen to the testimonies of people who have de-transitioned before making it quicker and easier to change gender. It was argued that, collectively, the proposed changes are likely to lead to an increase in the number of young people who regret their transition.

Other Issues

Q4: Do you have any other comments on the provisions of the draft Bill?

Given this question's focus on other provisions of the draft Bill, the issues covered were most likely to have been raised by respondents who were broadly in support of a statutory declaration-based system. These respondents were more likely to comment on the detail of how any new system should work than those who opposed the changes.

Non-binary and other gender identities: A key theme of many of the comments at Question 4 was that the provisions should be extended to non-binary people. This was frequently connected to a view that the reforms cannot be considered a success, inclusive of the whole trans community or a victory for equality, unless they cover non-binary people. There were also calls for the draft Bill to be inclusive of people who are gender fluid, genderqueer, agender or with other gender identities.

Ordinarily resident in Scotland: The draft Bill sets out that in order to apply for a GRC, applicants must either (a) have been born or adopted in Scotland or (b) be ordinarily resident in Scotland. In addition to queries as to what is meant be ordinarily resident in Scotland, there was a concern that asylum seekers and refugees might not be able to apply for a GRC.

Protected information and privacy: Those who commented on this issue generally disagreed with there being an option for additional exceptions relating to when information can be disclosed. Upholding trans peoples' privacy was described as a key principle of a legal recognition process, with additional exceptions seen as having the potential to undermine this.

Spousal veto and interim GRCs: While some expressed support for there being no final requirement for spousal consent, others felt that the proposed arrangements regarding interim GRCs would leave a version of spousal veto in place and that this is unacceptable. A very different concern was that a spouse would no longer be able to prevent their trans spouse from having their new gender recognised and could find themselves, for example, trapped against their will in a same-sex marriage when they themselves are heterosexual.

Offence of making false declaration or application: The draft Bill would make it a criminal offence to make a false statutory declaration in relation to gender recognition and to make a false application for gender recognition. Those commenting on this aspect of the proposals included those who supported a move to a statutory declaration-based system and those who did not.

Those who supported a move to a statutory declaration-based system noted that it is already a criminal offence to knowingly make a false statutory declaration and there was an associated query as to why any further or specific provision would be required. Both those who supported a move to a statutory declaration-based system and those who did not queried whether the provision would effectively criminalise a person who has been granted a GRC but who subsequently wishes to reverse their gender recognition.

Application fee: It was reported that the current £140 fee is significantly higher than for other comparable applications, such as when registering a birth, and some spoke of the challenges they themselves had experienced in raising the required fee. The consultation paper's reference to there being a consultation on the level of any fee should the draft Bill be enacted was welcomed, as was the intimation that any fee would be likely to be considerably lower than £140.

Impact Assessments

Q5: Do you have any other comments on the provisions of the draft Impact Assessments?

The comments of those who broadly supported a statutory declaration-based system tended to be brief in relation to the draft impact assessments, often simply expressing the view that allowing trans people to obtain a GRC more easily would not affect any other person or groups of people.

However, many of those who broadly opposed to a statutory declaration-based system argued that the impact assessments are not thorough, comprehensive or evidence-based and that they are inadequate and not fit-for-purpose. Specific concerns included that the Scottish Government has failed to consider certain relevant evidence and that some of the research that is cited may not be relevant. The majority of comments at Question 4 were about the Equality Impact Assessment (EQIA) and the Child Rights and Wellbeing Impact Assessment (CRWIA).

EQIA

Those broadly supporting a statutory declaration-based system sometimes suggested that the EQIA is good, comprehensive and correctly identifies that the proposals will not have a detrimental impact on anyone's rights. With respect to sex, many respondents expressly stated that they did not believe the proposed changes would have a negative impact on women and girls.

However, those broadly opposed to a statutory declaration-based system often thought that the draft EQIA fails to produce any evidence to support the Scottish Government's conclusion that the proposed changes will not negatively impact women. The Government's view that there is a lack of evidence that including trans women in women-only services and spaces has negative impacts was also challenged, including with respect to the prison system. Additional concerns were raised with respect to operation of the single sex exemptions available under paragraph 28 of schedule 3 of the Equality Act 2010, including a risk that some women may self-exclude from women-only spaces and services.

Some of the comments relating to the protected characteristic of age focused on older people and included welcoming the EQIA's conclusion that the proposals will advance equality of opportunity for older people, in particular those who have been living in their acquired gender for a longer period and may not have access to the evidence required to apply to the Gender Recognition Panel.

Other respondents suggested that, with respect to young people, the EQIA fails to consider the increase in the number of girls identifying as trans, why high numbers of autistic girls are identifying as trans, or the relationship between age and detransition^[2] rates and why there is no information or research on this issue.

A number of comments on disability focused on mental health and included support for the draft EQIA's recognition that having legal gender recognition and consistent documentation could have a positive impact on a trans person's mental health. However, it was also noted that there are limited studies on mental health after transition.

Comments in relation to gender reassignment tended to focus on the coverage of regret and/or detransition. Those broadly supporting a statutory declaration-based system sometimes questioned the relevance of the evidence cited as to the level of regret associated with transitioning, particularly the evidence on regrets associated with medical interventions. However, those broadly opposed to a statutory declaration-based system were concerned either about a lack of evidence relating to detransition or that the evidence which is available has not been fully considered when developing the proposals.

It was argued that the EQIA should include a more explicit statement in relation to protection of religion or belief in respect of (for example) the freedom of conscience of healthcare workers and the freedom of parents and of schools to teach in accordance with their religious and ethical views. This was sometimes connected with a perception that some protected characteristics are seen as more important than others, and that the views of many people of faith, and of faith groups, have been side-lined.

CRWIA

Many of the comments relating specifically to the CRWIA covered similar themes to those raised in relation to the EQIA or returned to issues discussed in relation to whether the minimum age for legal gender recognition should be reduced to 16.

Those who broadly supported a statutory declaration-based system often thought that the evidence presented is robust and helpful and that the proposal to extend legal gender recognition to 16- and 17-year-olds can be seen as a reasoned response to the available evidence. It was also suggested that this evidence would equally well apply to extending the provision to those under 16.

Respondents who were broadly opposed to a statutory declaration-based system often argued that the CRWIA does not consider the impact of the proposals on children other than those seeking to change their gender legally. It was suggested that a study of the impact on all other children is required. There were also concerns that the CRWIA downplays parental rights.