Gender Recognition Reform (Scotland) Bill: consultation analysis

1. Introduction

Background

1.1 This report presents analysis of responses to the Scottish Government's consultation on the draft Gender Recognition Reform (Scotland) Bill (the draft Bill) which would amend the Gender Recognition Act 2004 (the 2004 Act) to introduce a new system for obtaining legal gender recognition in Scotland. This current consultation follows on from the 2017-18 consultation on the principles of reforming the 2004 Act.^[3]

1.2 The proposals set out in the draft Bill are:

• The removal of current medical requirements when applicants are seeking legal gender recognition;
• The removal of the need to apply to the Gender Recognition Panel (GRP). Instead, applicants would apply to the Registrar General for Scotland who already has a number of existing functions under the 2004 Act;
• Applicants must either (a) have been born or adopted in Scotland or (b) be ordinarily resident in Scotland;
• Applicants must have lived in their acquired gender for a minimum of 3 months (rather than the current minimum of 2 years) before submitting an application for gender recognition;
• After an application has been accepted by the Registrar General, the applicant would have to confirm after a reflection period of 3 months that they wish to proceed;
• Applicants would have to confirm that they intend to live permanently in their acquired gender;
• Applicants would still be required to submit statutory declarations, made in front of a notary public or a justice of the peace; and
• It would be a criminal offence to make a false statutory declaration in relation to gender recognition and to make a false application for gender recognition.

1.3 The consultation specifically sought views on two of these matters – 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.

1.4 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/.

1.5 In April 2020 the Scottish Government announced that, in light of the COVID-19 pandemic, work on reform of the 2004 Act would have to be paused and, as a consequence, that the Scottish Government would not bring forward a Bill to reform the gender recognition process before the Scottish Parliamentary elections in May 2021. The analysis of responses to the consultation was carried out between December 2020 and February 2021.^[4]

Profile of respondents

1.6 In total 17,058 responses were available for analysis.^[5]

1.7 Most responses were received through the Scottish Government's Citizen Space consultation hub. The Scottish Government also received a number of identical, hard copy responses.

1.8 A small number of respondents did not make their submission on the consultation questionnaire but submitted their comments in a statement-style format. This content was analysed qualitatively under the most directly relevant consultation question.

1.9 All respondents were asked whether they were resident in Scotland, the rest of the UK, or the rest of the world. Those who did not answer this question have been placed in the rest of the world group.^[6] 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.

1.10 Respondents were also asked whether they were responding as an individual or on behalf of a group or organisation. Most responses (16,843 of those available for analysis) were submitted by individual members of the public. The 215 organisational respondents were allocated to one of ten groups by the analysis team and the Scottish Government although, in several cases, respondents could have been placed in more than one group. In these instances, they were placed in the group which was felt to be the most appropriate based on the focus of their submission.

1.11 A breakdown of the number of responses received by respondent type and location is set out in Table 1 below and a full list of the organisations that responded is provided at Annex 1.

Table 1: Respondents by type and location

	Scotland	Rest of the UK	Rest of the world	Total
Children or Young People's Group	4	1	-	5
LGBT Group	19	13	2	34
Local Authority, H&SCP1 or NHS	13	-	-	13
Public Body	4	1	-	5
Religious or Belief Body	30	3	2	35
Third Sector Support Organisation	14	1	-	15
Trans Group	10	7	3	20
Union or Political Party	16	3	2	21
Women's Group	19	13	2	34
Other	23	7	3	33
Total Organisations	152	49	14	215
% Organisations 2	71%	23%	7%
Individuals	9,173	5,330	2,340	16,843
% Individuals	54%	32%	14%
All respondents	9,325	5,379	2,354	17,058
% All respondents 2	55%	32%	14%

¹ Health and Social Care Partnership ² Do not add to 100% due to rounding

1.12 The responses from organisations that responded to the consultation can be found on the Scottish Government's website.

1.13 In addition to submitting their own responses, a number of organisations and groups developed briefing materials for others to draw on in developing their responses. Children or Young People's Groups, LGBT, Trans and Women's Groups and Religious or Belief Bodies were among those making briefing notes available. These briefing notes often encouraged respondents to adapt or expand on the materials provided.

1.14 Whilst many individual respondents appear to have accessed these briefings, respondents frequently personalised their submission and some responses appeared to draw on more than one set of briefing materials.

1.15 It is important to note that as with any public consultation exercise, those responding generally have a particular interest in the subject area and the views they express cannot be taken to be representative of wider public opinion.

Analysis and reporting

1.16 The consultation paper asked five questions, each with a closed and open element. However, at Questions 1, 2, 4 and 5 the closed question simply asked if the respondent had any comments to make and, in practice, all comments were considered irrespective of the answer at the closed question.^[7]

1.17 Question 3 asked whether respondents agreed that the minimum age for legal gender recognition should be reduced. Here the overall balance of opinion at the closed element is presented by respondent type in the main report and by location of respondents in Annex 2. Drawing on answers at the closed question, the analysis of further comments at Question 3 is divided according to whether or not respondents agreed with the age being reduced.

1.18 Whilst the analysis at Questions 1, 2, 3 and 5 is arranged thematically, it should be acknowledged that most respondents to the consultation tended to take one of two overall positions on the proposals, as set out below.

1.19 These two groups are described as being either broadly in support of, or proposed to, a statutory declaration-based system. This reflects the nature of the proposals set out within the Bill, although respondents generally referred to their support for, or opposition to, self-declaration or self-identification.

1.20 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

1.21 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 self-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 the requirement to live in the acquired gender or that a period of reflection is required. These respondents tended to agree with reducing the age at which a person can apply for legal gender recognition to 16.

1.22 This was the perspective of many individual respondents and all, or the considerable majority of, Children and Young People's, LGBT and Trans Groups, Union or Political Parties, Local Authority, H&SCP or NHS respondents and Third Sector Support Organisations.

Those broadly opposed to a statutory declaration-based system

1.23 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 that the minimum age at which a person can apply for legal gender recognition should be reduced from 18 to 16.

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

Report structure

1.25 The remainder of this report presents a question-by-question analysis of responses, but before addressing individual questions a number of overarching themes are considered. These are issues beyond the narrower focus of the questions posed in this consultation, but were raised frequently and were sometimes the main focus of respondents' comments, particularly at Question 4. They have much in common with some of the themes that emerged from the analysis of responses to the 2017-2018 consultation on the Review of the Gender Recognition Act 2004.

1.26 They are grouped together in Chapter 2, beginning with some common concerns with respect to the nature of the debate. As noted at the beginning of the next chapter, both the debate concerning trans issues more widely, and the proposals for reform of the 2004 Act in particular, have become highly polarised. In some cases, this extended to the language and tone used within the responses submitted to this consultation.

1.27 The analysis team appreciates that the language used in relation to this issue can be of particular importance and significance to respondents. Where possible, the report seeks to reflect the language used by respondents, with this language tending to vary depending on whether respondents were broadly in support of or broadly opposed to a statutory declaration-based system.

1.28 Finally, as noted above, respondents were asked to identify whether they were resident in Scotland, the rest of the UK or the rest of the world. The analysis has looked for any particular patterns or differences in the issues raised across these three groups, but no significant variations were found.