Gender Recognition Reform (Scotland) Bill: consultation analysis

Footnotes

1. Although respondents tended to refer to safe spaces, the Equality Act 2010 refers to separate services: see Equality Act 2010 - Explanatory Notes.

2. The Cambridge English Dictionary defines detransitioning as being 'the process of stopping changes, which may be social, legal, or medical, that lead to someone living as a person of a different gender to the one they were said to have at birth.'

3. The analysis of responses to the 2017-2018 consultation on the Review of the Gender Recognition Act 2004 can be found on the Scottish Government's website at: https://www.gov.scot/publications/review-gender-recognition-act-2004-analysis-responses-public-consultation-exercise-report/

4. Please note, therefore, that the responses analysed here were submitted prior to the UK Government's September 2020 announcement that they did not intend to proceed with reform to the gender recognition legislation for England and Wales, and prior to the December 2020 Divisional Court ruling on the judicial review of the Tavistock and Portman NHS Foundation Trust's Gender Identity Development Service (GIDS) practice of obtaining consent for administering puberty blockers to children with gender dysphoria.

5. 115 duplicate or empty responses were removed before analysis. A response was counted as a duplicate when both the name and email address matched. If the content of the duplicate responses were not identical, the response submitted last was used in the analysis.

6. An exception was made for 337 hard copy responses which were received through domestic post. These have been divided pro rata between the resident in Scotland and resident in the rest of the UK groups, according to the number of individual citizen space responses received from each location.

7. The answer at these questions did not always reflect whether a comment was made (for example a respondent may not have answered the question or have answered 'no' and gone on to make a comment). Hence no analysis is presented at the closed elements of these questions.

8. Under Articles 8 (the right to respect for private and family life) and 12 (the right to marry) of the European Convention on Human Rights (ECHR).

9. The Yogyakarta Principles are the outcome of an international meeting of human rights groups in 2006. The Principles were expanded in 2017, including through the addition of new grounds of gender expression and sexual characteristics. Further information is available at: http://yogyakartaprinciples.org/.

10. Principle 31 recommends that states institute 'a quick, transparent, and accessible mechanism that legally recognises and affirms each person's self-defined gender identity' for which 'no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, economic status, health, marital or parental status, or any other third-party opinion, shall be prerequisite to change one's name, legal sex or gender'.

11. Section 8U(1)(d) would enable the Registrar General for Scotland to, by regulations, make further provisions relating to the information or evidence to be included in an application or notice of confirmation.

12. The Cambridge English Dictionary defines detransitioning as being 'the process of stopping changes, which may be social, legal, or medical, that lead to someone living as a person of a different gender to the one they were said to have at birth.'

13. As per the consultation paper, taken from the Cabinet Secretary's Parliamentary statement that: "Retaining the requirement for a statutory declaration, making it clear that a false declaration is a criminal offence and building in time for reflection will enshrine in law the seriousness of the process. No one should doubt that it is a significant undertaking, or that it will require the same level of commitment from the individual as he existing system does." The full statement is available at: https://www.parliament.scot/parliamentarybusiness/report.aspx?r=12196&mode=pdf

14. Comments from respondents suggest that some of those raising these concerns may have misunderstood the proposal to be that the 3 month living in an acquired gender period would have to begin at application, and then be followed by the 3 month reflection period, meaning that they understood the minimum time from application to receiving a GRC would be 6 months. The Scottish Government proposals in the consultation state that applicants must have lived in their acquired gender for a minimum of 3 months before submitting an application for gender recognition.

15. Under the Equality Act 2010 it is against the law to discriminate against someone because of a protected characteristic. These characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

16. The UNCRC Articles that the Scottish Government considers relevant to the proposals are listed in the draft Child Rights and Wellbeing Impact Assessment provided as Annex G to the consultation paper.

17. The capacity of a young person under 16 to consent to treatment 'if it is thought that they have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment' is often described as being 'Gillick Competent'. The term refers to a House of Lords decision in Gillick v West Norfolk & Wisbech Area Health Authoritywhich is binding in England and Wales. In Scotland, capacity to consent to medical, dental or surgical treatment is a matter for the Age of Legal Capacity (Scotland) Act 1991 section 2(4) - "A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment."

18. In September 2018 it was reported that the Minster for Women and Equalities had ordered an inquiry into a steep rise in the number of young people being referred to gender identity clinics. It does not appear to have reported to date.

19. At the time of the consultation, permission had been given for a judicial review against the Tavistock and Portman NHS trust, which runs the UK's main gender identity development service for children. One of those bringing the action, Keira Bell, argued she should have been challenged more by medical staff over her decision to transition as a teenager. In Scotland the NHS Gender service for Children and Young People is the Young People's Gender Service at Sandyford, Glasgow - https://www.ngicns.scot.nhs.uk/nhsservices/children-and-young-people/)

20. The development of cognitive and emotional maturity in adolescents and its relevance in judicial contexts. Available at: https://www.scottishsentencingcouncil.org.uk/media/2044/20200219-ssc-cognitive-maturity-literature-review.pdf.

21. Available at: https://www.scottishsentencingcouncil.org.uk/news-and-media/news/research-indicates-the-brain-does-not-fully-mature-until-you-are-at-least-25

22. A Scottish Sentencing Council consultation on 'Sentencing young people' opened on 28 February 2020 and closed on 21 August 2020. The consultation paper is available at: https://consultations.scottishsentencingcouncil.org.uk/ssc/young-people/supporting_documents/Sentencing%20young%20people%20%20public%20consultation%20paper.pdf

23. In December 2020 the High Court of England and Wales found against the Tavistock Clinic, concluding that it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with puberty blockers and that it is also very doubtful that 14- and 15-year-old children could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent. The judgement is available at https://www.judiciary.uk/wp-content/uploads/2020/12/Bell-v-Tavistock-Judgment.pdf. On 19 January 2021, the Tavistock and Portman NHS trust was granted leave to appeal the decision. It should be noted that the High Court decision does not extend to Scotland.

24. The consultation analysis is available at: https://www.gov.scot/publications/review-gender-recognition-act-2004-analysis-responses-public-consultation-exercise-report/

25. As noted in Chapter 1, responses were submitted prior to the UK Government's September 2020 announcement that it would not be proceeding with reforms to the gender recognition legislation that applies in England and Wales.

26. As per section 8N(2) of the Bill.

27. 'Protected information' means information which relates to a person who has made an application for a GRC and which concerns that application or, if the application is granted, 'otherwise concerns the person's gender before it becomes the acquired gender'.

28. The example was that some people in an organisation, such as in its HR department, may know about a person's trans history but those taking the decisions on staff deployment, such as line managers, may not. The consultation paper suggested that in these circumstances, and when there is a legitimate case to use the general occupational requirements exception, the Scottish Government considers that it would be appropriate for information about a person's trans history to be shared in a strictly limited, proportionate and legitimate way.

29. Where the applicant is married or in a civil partnership, they must include a statutory declaration as to whether or not they wish the marriage or the civil partnership to continue after the issue of a full GRC and either a statutory declaration by their spouse or civil partner that they wish the marriage or civil partnership to continue after the issue of a full GRC or a statutory declaration by the applicant that no such declaration by the spouse or civil partner is included.

30. Section 22A(1) of the Bill would create an additional offence for knowingly making a statutory declaration in relation to an application for gender recognition that is false in a material particular.

31. Under the Criminal Law (Consolidation) (Scotland) Act 1995.

32. Something may be considered to be a material particular if it is a matter of significance and not trivial or inconsequential to the outcome of a case.

33. As previously stated, the responses analysed here were submitted prior to the UK Government's September 2020 announcement on gender recognition reform. From 4 May 2021, the fee for applying for gender recognition was reduced from £140 to £5 in terms of the Civil Proceedings and Gender Recognition Application Fees (Amendment) Order 2021.

34. Dunne, P., 2017. (Trans)forming single gender services and communal accommodations. Social and Legal Studies, 26(5): 537- 561 and Eckes, S., 2017. The restroom and locker room wars: Where to pee or not to pee. Journal of LGBT Youth, 14(3): 247-265.

35. Gottschalk, L., 2009. Transgendering women's space: A feminist analysis of perspectives from Australian women's services. Women's Studies International Forum, 32(3): 167-178.

36. 'Gillick Competence' is a test of capacity in English and Welsh law. In Scotland, capacity to consider to medical, dental or surgical treatment is a matter for the Age of Legal Capacity (Scotland) Act 1991 section 2(4)- "A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment."

37. Scotland's next census is to be moved to March 2022 due to the impact of COVID-19.