Gender Recognition Reform (Scotland) Bill: consultation analysis

3. Procedure before application for legal gender recognition

3.1 At present the standard track for gender recognition can be used by applicants who:

• Have been diagnosed with gender dysphoria;
• Have lived in their acquired gender throughout a period of two years immediately prior to their application; and
• Intend to live in their acquired gender for the rest of their life.

3.2 Applicants must also provide two medical reports to the GRP.

3.3 Under the proposed system the current medical requirements would be removed. The new requirement would be that applicants must have lived in their acquired gender for a minimum of 3 months before submitting an application for 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?

3.4 Around 14,200 respondents made a comment at Question 1.

3.5 While comments at Question 1 often addressed the specifics of living in an acquired gender for at least 3 months before applying for a GRC there were also broad statements of support of, or opposition to, the draft Bill overall and/or to the framing of the proposed approach.

3.6 For some this was articulated around support for, or opposition to, self-declaration, albeit it was not always clear whether respondents considered the approach as proposed would equate to self-declaration.

Those broadly in support of a statutory declaration-based system

3.7 Those who made general statements in support of the draft Bill often referred to the importance of promoting equality and creating a simple, straightforward system which treats people with dignity and respect. Some noted their support for the overall direction of the proposals, and a system based on self-declaration, including because it would be simpler.

3.8 The shortening of the current 2-year timescale for receiving a GRC was often described as representing a significant and very welcome improvement, although this was often caveated with the view that the proposals could and should go further. Some thought that the proposed approach would remain unnecessarily complicated, would act as a barrier to applying for and receiving a GRC and, by extension, would discriminate against trans people.

3.9 Respondents sometimes contrasted the proposals set out in the draft Bill with the approaches taken in some other countries which have made is it easier to change a birth certificate. Examples given included Argentina (since 2012), Ireland (since 2015), Malta (since 2015), Norway (since 2016), Belgium (since 2017) and Portugal (since 2018).

Those broadly opposed to a statutory declaration-based system

3.10 Others objected to the proposals precisely 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. For some of these respondents, their objection was based on the draft Bill implying that changing sex or gender, which they regarded as impossible, can be done. These respondents sometimes explained that they considered changing sex or gender to be contrary to their belief system, and specifically to the teachings of their religion.

3.11 There was also a view that by allowing someone with a GRC to change their birth certificate, they are changing their legal sex. It was argued that this is unscientific, since biological sex is determined by DNA and chromosomes.

3.12 The concerns of many of those objecting to a declaration-based system were linked very strongly to the implications of the changes for women and girls, as summarised in the previous chapter, and a concern that these have not been taken into account sufficiently, as covered further at Question 5.

Removal of the requirement for a diagnosis of gender dysphoria

3.13 A key area in which views on the content of the Bill differed was around there no longer being a requirement for a medical diagnosis of gender dysphoria.

Those broadly in support of a statutory declaration-based system

3.14 De-medicalising the process of obtaining a GRC was warmly welcomed by many of those broadly supportive of a statutory declaration-based system, including because (as noted in the previous chapter) the need to provide evidence of a medical diagnosis of gender dysphoria to the GRP was seen as one of the main problems with the current system. It was reported that not every trans person experiences gender dysphoria, and so a diagnosis of the condition is irrelevant to a person's identity.

3.15 Other points raised were that having a trans gender identity is not the same as having a mental illness and that not every trans person wishes to medically transition to one or another binary gender. On this basis, any medical evidence of transition is irrelevant to a person's identity, as well as being invasive.

3.16 Support for removing the need for a medical diagnosis of gender dysphoria was sometimes associated with support for abolishing the GRP, including because it was seen as acting as an unnecessary gatekeeper to legal gender recognition.

Those broadly opposed to a statutory declaration-based system

3.17 However, those broadly opposed to a statutory declaration-based system argued the diagnosis of gender dysphoria is a key requirement that should be retained. It was suggested that removing this requirement significantly changes the nature of the 2004 Act, which was introduced to help a small group of people with the medically recognised condition of gender dysphoria. Going forward it was argued the proposed reform would extend the GRC process to a much larger and more diverse group.

3.18 Without a requirement for a diagnosis of dysphoria it was suggested the process would:

• Be open to abuse from predatory men.
• Risk leaving those transitioning without proper medical support.
• Increase the chance that other conditions may go undiagnosed and unexplored.

3.19 With respect to the last point, a number of potential co-morbidities were highlighted, including eating disorders, depression and anxiety, as well as the experience of previous personal trauma. There were also particular concerns in relation to the number of autistic people presenting as trans. Fears were expressed that, without a diagnosis of gender dysphoria, potentially vulnerable adults and adolescents may commit to a process they will later come to regret.

Living in the acquired gender

The concept of acquired gender

3.20 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.

3.21 It was noted that the term 'acquired gender' is not defined in the consultation paper or the draft Bill and there was an associated suggestion that, without an adequate definition, it is essentially meaningless.

3.22 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. The notion of living in a particular gender was seen as making very little sense in today's society, particularly if it is assumed that gender non-conforming is a basic right.

3.23 For some it was also seen as bringing worrying and offensive connotations that someone else, be it the Scottish Government or some other arbiter, should decide upon and define what constitutes life as a woman or life as a man. In this context, it was seen as threatening people's autonomy and self-determination.

Those broadly in support of a statutory declaration-based system

3.24 There was also a concern, raised primarily by those broadly in support of a statutory declaration-based system, that the description of a gender as being 'acquired' is in itself both wrong and offensive. Those raising this concern commented that it implies a degree of choice or preference that is simply not the case and that trans people are simply seeking to be recognised in the gender that is already theirs and/or into which they were born. Alternative descriptors, including 'affirmed', 'correct' or 'preferred', were suggested, as well as a suggestion that no qualifier is required, and the Bill should simply refer to 'gender'.

3.25 It was also seen as unclear whether this stipulation requires the applicant to make any change at all to their outward appearance or lifestyle. In terms of how 'living in an acquired gender' could be expected to manifest itself, there was a concern that people would effectively be expected to perform a role in public, based on how they dressed or acted, and that this would be both demeaning and a potentially very harmful imposition.

3.26 There were references, including some based on trans peoples' own experiences of the current GRC approach, to: being required to 'play act'; of names not being considered masculine or feminine enough; and of being told they had put insufficient effort into acting as a man or a woman. The associated concern was that these types of requirements and judgments would remain under the proposed approach.

3.27 Those broadly in support of a statutory declaration-based system also raised concerns that:

• Many trans people may not be able, or feel able, to live in their acquired gender because of fear of prejudice, discrimination, or concern for their safety.
• Any requirement to have lived in their acquired gender for a set period of time could discriminate against those who have differing levels of support to do so or who have fewer resources. For example, it was noted that making changes to how you present to the world could involve significant costs, for example relating to clothes, hairstyle or hair removal.

3.28 Further, it was noted that living as either a man or a woman is not an option for non-binary people and living as a man or women for a set period may not be an option for those who are gender fluid.

Those broadly opposed to a statutory declaration-based system

3.29 For others, and primarily those broadly opposed to a move towards a statutory declaration-based system, referring to 'acquired gender' speaks back to a fundamental misunderstanding or confusion about the difference between sex and gender and how the proposals, and the Scottish Government more widely, understand and use these terms.

3.30 Their concerns very much reflected those outlined in Chapter 2, including that while gender is a social construct, biological sex is an immutable characteristic that cannot be changed.

A requirement to provide evidence?

Those broadly in support of a statutory declaration-based system

3.31 One of the concerns raised about the Bill as currently drafted was that, rather than simply allowing applicants to make a statutory declaration, in its current form it could be used to require applicants to provide evidence of having lived in their acquired gender for 3 months.^[11] Those broadly in support of a statutory declaration-based system suggested that:

• A requirement to provide evidence is not in keeping with the Council of Europe Resolution 2048 which calls for quick, transparent and accessible procedures, based on self-determination.
• Equivalent evidence-related requirements are not in place for other key documents like passports, medical records or work or education-related paperwork.

3.32 Central to these concerns – and relating back to the previous comments about what is meant by living in an acquired gender – was a suggestion that evidence can be subjective and can be both culturally and socially specific, as well as subject to individual interpretation. The ability to provide and gather evidence was again seen as dependent on an individual having access to the resources necessary – with the need for financial resources, time and the emotional energy to gather evidence all highlighted as issues.

3.33 It was also reported that trans people are more likely to experience health and poverty issues that could prevent them from holding some of the key documents often used for ID purposes, such as driving licences, passports or utility bills. Specifically, it was suggested that trans people are more likely to experience homelessness or be subject to domestic abuse and that either of these circumstances can result in not having, or not having access to, key documentation.

Those broadly opposed to a statutory declaration-based system

3.34 While for some the concern was that people would be required to evidence that they had lived in their acquired gender, for others the concern was very much that they would not. Those broadly opposed to a statutory declaration-based system 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. It was suggested that being able to make a statutory declaration that you have lived in an acquired gender for the requisite period of time, but not being required to provide any evidence to that effect, would mean the system was open to abuse.

3.35 It was also argued that, if it is to be an offence to make a false application, it will be imperative that people are clear about what is required of them, and about any evidence they would need to provide. Equally, it was argued that if the evidence required is not clear, it will not be possible to hold someone accountable if they do not adhere to the legislation and make a false declaration.

Living for 3 months in the acquired gender

3.36 As well as commenting on the idea and practicalities of living in an acquired gender, respondents often commented on the proposal that someone would be required to do so for at least 3 months.

3.37 Comments about the timescales over which someone could apply for and receive a GRC sometimes referred to the two periods set out in the draft legislation - the 3-month period of living in the acquired gender that is the focus of Question 1 and the 3-month period of reflection that is the focus of Question 2. For some respondents, these two periods were distinct, for others the overall period of time between applying for and receiving a GRC was what they considered important.

3.38 In some cases, it was not clear whether respondents were referring to the overall period between applying for and receiving a GRC (effectively the 6 month period created by 3 months living in acquired gender and the 3-month reflection period) or were making a distinction between the two time periods. For example, if at Question 1 a respondent commented that 'it should be 2 years' it was not necessarily clear whether they were referring to the period for living in an acquired gender or the entirety of the period between applying for and receiving a GRC.

3.39 More generally, it was suggested that the two 3-month periods set out seem arbitrary, with no evidence presented as to why they have been chosen, either in isolation as two periods or collectively as a 6-month period.

Any period of living in an acquired gender

Those broadly in support of a statutory declaration-based system

3.40 Very much reflecting the issues covered above, 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. Concerns raised about such an approach were both mirrored and amplified in relation to the reflection period and are covered further at Question 2.

3.41 The inconsistency with other circumstances under which a statutory declaration is required were highlighted. For example, it was reported that if officially recording a change of name, there are no requirements to have been using that name for any defined time period. There was a view that is unreasonable and, arguably, discriminatory to take a different approach simply because gender is involved.

3.42 Also with specific reference to gender, those broadly in support of a statutory declaration-based system noted that the processes for changing gender on other forms of identification, such as passports and driving licences, do not oblige applicants to have lived in the 'acquired gender' for any defined period. For example, it was explained that to update the gender marker on a driving licence, applicants without a GRC can simply provide a statutory declaration or deed poll that they have changed their gender.

3.43 Also in comparison with making changes to other documents, an occasional view was that any time period required should simply reflect the time needed to complete the necessary administrative process. This tended to be expressed simply as being a required time period rather than a period in which a trans person should be required to live in their acquired gender.

3.44 Other comments addressed whether or how any time period could or should vary depending on personal circumstances. These comments were more likely to be, but were not always, connected to living in the acquired gender (rather than the entire period from applying for to receiving a GRC), and included that:

• The time period could vary depending on the age and/or lived experience of the applicant. For example, the period could be longer if someone is younger and/or has no or limited experience of living in their acquired gender. It might be shorter if someone has experience of living in their acquired gender in the past but has not been doing so continually for the 3 months prior to making an application.
• There could be emergency provision which allows someone to receive their GRC more quickly under certain circumstances, for example if they are seriously ill and nearing death. This was connected to the indignity for a trans person of dying with a birth certificate that does not record the right gender.

A longer period required

Those broadly opposed to a statutory declaration-based system

3.45 In contrast, those broadly opposed to a statutory declaration-based system generally thought a period of 3 months living in the acquired gender to be 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. A very small number of respondents who identified themselves as trans were among those who argued that 3 months is too short.

3.46 It was also argued that 3 months:

• Does not allow time for the diagnosis of gender dysphoria that many considered essential.
• Does not prove a commitment to permanent change in the way that 2 years does.
• Does not allow sufficient time for people to change their mind.
• Trivialises the legal gender change process and makes it much too easy to abuse.

3.47 In addition, some respondents highlighted what they saw as a risk that, in such a short period, a vulnerable individual might complete the legal transition process while suffering temporary distress, for example as a result of trauma or bereavement.

3.48 Serious concerns were also raised by those broadly opposed to a statutory declaration-based system with respect to the combination of reducing the time to 3 months and lowering the age limit from 18 to 16. It was often argued that, in the majority of cases, gender dysphoria in young people resolves naturally given time. Citing the rising number of young people who are detransitioning,^[12] some respondents suggested that making the GRC process quicker and less robust will cause these numbers to rise still further.

3.49 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. Others allowed that 2 years may be too long but argued that 6 months or 1 year would be a more appropriate alternative.

3.50 Some respondents referred to the total timeframe of 6 months over which the draft Bill would allow the application process to be completed – again suggesting that this is too short, particularly with respect to young people who may be at a confusing life stage and who may realise, if given more time, that legal gender change is not what they need.