Gender Recognition Reform (Scotland) Bill: consultation analysis

4. Procedure after application for legal gender recognition

4.1 It is proposed that an application for legal gender recognition would be submitted to the Registrar General but would not be completed until a 3-month reflection period had passed and the applicant had confirmed in writing that they wished to proceed. The draft Bill refers to this as 'notice of confirmation'. The analysis below also considers points made in relation to the requirement that applicants would have to confirm that they intend to live permanently in their acquired gender.

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?

4.2 Around 13,700 respondents made a comment at Question 2.

4.3 As already noted at Question 1, it was not always clear whether comments relating to time referred to the overall time to complete the legal gender recognition process or were referring specifically to the 3-month period of reflection referenced in the question. Otherwise, many of the issues raised at Question 2 reflected themes already covered at Question 1, with some respondents simply referring back to their comments at the previous question.

Any reflection period

Those broadly in support of a statutory declaration-based system

4.4 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 the view of many of those broadly in support of a statutory declaration-based system 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 a period of reflection they have not made an ill-considered decision or come to a quick decision. They also argued that there are very few instances of people detransitioning.

4.5 The other key reasons given for objecting to the reflection period often reflected those raised at Question 1, including that:

• It is simply not consistent with the principle of self-determination.
• There is no equivalent period in place for changing other forms of identity documentation or with other uses of statutory declarations.
• It would be unnecessarily complicated and bureaucratic for no good reason or benefit. It was described as neither making things simpler for trans people nor as being in their best interests.
• It effectively equates to only an additional waiting period; someone who has not been living in their acquired gender, or cannot evidence that they have been doing so, would effectively have to wait to receive a GRC for 6 months. For some, this was seen as a concession to those who oppose a move towards self-determination, rather than a rational policy decision that can be evidenced and explained.

4.6 On this latter point, while it was recognised that the Scottish Government has proposed a reflection period in order to 'enshrine in law the seriousness of the process'^[13] it was also suggested that the existing protections to guard against fraud are significant to prevent decisions around applying for a GRC from being taken lightly. The need for a statutory declaration in front of a Notary Public was considered a sufficient requirement in terms of underlining the gravity of the decision.

4.7 Some of those broadly in support of a statutory declaration-based system also reported that a period of reflection is not a feature of other systems that are based on self-determination, for example those of Ireland, Luxembourg, Malta, Norway or Portugal. While it was also acknowledged that some countries, including Belgium and Denmark, do have a reflection period in place, respondents were not aware of any evidence to suggest that the approach has brought added benefit.

4.8 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.

4.9 It was also seen as implying that seeking legal gender recognition is a potentially undesirable option which needs to be guarded against. For some, including some respondents who reported that they are trans, this implication was thought to be demeaning or offensive and as having the potential to reinforce harmful myths about trans people. The particular concern was that it appears to be in line with suggestions that someone's trans identity may be a phase or may be the result of confusion or crisis.

4.10 Both individuals who have transitioned and organisations that support trans people commented that any reflection period cannot be explained or justified based on their own lived experience or the experience of those they work with. Rather, it was reported that most trans people will have been aware of their gender identity, will have been considering transitioning, and may have been transitioning socially, for some time prior to applying for a GRC.

4.11 Specifically, it was reported that many trans men or trans women making a GRC application are likely to have been living in the 'acquired gender' for a long period of time and should not be required to further 'reflect' on their gender and experience delays in accessing legal gender recognition.

Those broadly opposed to a statutory declaration-based system

4.12 In contrast, some respondents who argued in favour of retaining the existing system 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.

4.13 For some of those broadly opposed to a statutory declaration-based system, 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, it is not clear how someone would be able to prove they had reflected. If the process is not or cannot be defined, and if people are not required to provide any evidence that they have reflected, some questioned whether the period of reflection offers any value. In this respect, they agreed with some of those who disagreed with there being any reflection period that it equates to nothing more than a waiting period.

4.14 However, there was also a view that there should be a reflection period, but that some form of advice, counselling, or therapy to help applicants consider whether their decision to apply for a GRC is the right one, should be available or required. Some respondents specified that any services offered should be impartial.

Appropriateness of 3 months reflection

4.15 While some respondents did think that a 3-month reflection period was acceptable, as with the 3-month period of living in an acquired gender, others questioned why 3 months had been chosen or suggested that it appeared arbitrary and had not been explained adequately.

Those broadly in support of a statutory declaration-based system

4.16 For some, the 3-month period was unacceptably long. As at Question 1 and reflecting the issues covered above, most simply thought there should be no reflection period.

4.17 Also as at Question 1, there were concerns about the impact that a 3 month period might have, including in relation to: protecting privacy; wanting to get married; having pension and insurance policies administered correctly; and ensuring they are recognised in death in their correct gender. There was a particular concern that someone who had not already been living in their acquired gender would need to wait for 6 months (i.e. the 3 month period of living in the acquired gender and then the 3 month period reflection period), in order to obtain a GRC.^[14]

Those broadly opposed to a statutory declaration-based system

4.18 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.

4.19 Some respondents who thought 3 months too short a period for reflection, took a view that 6 months would be more appropriate, sometimes adding this to 6 months living in the acquired gender to make a gender recognition process taking a year overall.

4.20 Other respondents argued for a year, or at least a year. Sometimes these respondents had also suggested a year living in the acquired gender or were also looking for the current medical process to be retained.

4.21 A total period of 6 months in which the legal gender recognition process could be completed was also argued to be too short, including because:

• It is significantly shorter than the time it takes for an applicant to obtain a diagnosis of gender dysphoria.
• There is a particular risk that young people may make a decision they come to regret. Some respondents referenced the possibility that young people from England and Wales might complete legal gender recognition within a single academic year while enrolled at university in Scotland. The issue of what constitutes being 'ordinarily resident' in Scotland is discussed at Question 4.
• A period of 6 months from application to receiving a GRC sets too low a bar to deter men who are seeking a GRC in order to facilitate abusive behaviour.

4.22 The reduced time period, especially in combination with the removal of the need for a diagnosis of gender dysphoria, was seen as removing one of the key safeguards provided by the current approach, with women and girls identified as those most likely to be harmed by the loss of these safeguards.

Living permanently in the acquired gender

4.23 After the reflection period of 3 months, an applicant would have to confirm that they wish to proceed and that they intend to live permanently in their acquired gender. Applicants would be required to submit a statutory declaration and it would be a criminal offence to make a false application for gender recognition or make a false statutory declaration in relation to gender recognition.

4.24 Concerns were raised about a possible lack of provision for having a GRC revoked. Both those supporting and opposed to a statutory declaration-based system highlighted this issue.

4.25 One interpretation was that as there is no proposal to introduce a cap on the number of applications, it should continue to be possible for someone who has a GRC to have it revoked by making an additional application, which would effectively then rescind the prior certificate.

4.26 However, others were concerned that the Bill could be interpreted as precluding multiple applications, and that this could be harmful if someone wishes to detransition or retransition. Some respondents commented that someone may simply come to feel they have made the wrong decision and wish to detransition. Others thought that someone's gender identity will not necessarily be fixed, including if they are gender fluid, and that the system should allow for changes over time.

4.27 There was an associated concern, covered at Question 4 below, that someone who wishes to detransition or retransition will be considered to have committed a criminal offence when making the initial statutory declaration in relation to their GRC.