Gender Recognition Reform (Scotland) Bill: consultation analysis

6. Other Issues

6.1 Respondents raised a diverse range of issues at Question 4, with the focus often on the case for changing or not changing the current system and the potential impact of the proposed changes on different groups of people. These overarching themes have been covered in Chapter 2.

6.2 It should be noted that, 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 either supported the general principles underpinning the draft Gender Recognition Reform (Scotland) Bill or who supported change but thought that the draft Bill falls short in terms of creating a simpler, more inclusive approach. These respondents were more likely to comment on the detail of how any new system should work than those who opposed the changes.

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

6.3 Around 11,900 respondents made a comment at Question 4.

Non-binary and other gender identities

6.4 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 it covers 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.

6.5 In support of those who are non-binary or who have other gender identities being covered by the reforms, it was suggested that the same principles apply to improving legislative equality for this population, including around safeguarding their wellbeing, and improving social acceptance and understanding. There were reports of some challenges faced currently by those who are non-binary, with a number of these coming from respondents who explained that they identify as non-binary. These challenges included in relation to accessing health, education and other public services and having to submit documentation, including birth certificates and other official documents, that are inconsistent with their lived identity.

6.6 Some noted that they were particularly disappointed that the current proposals do not cover non-binary identities since a clear majority of respondents to the 2018 consultation on Review of the Gender Recognition Act 2004 thought that Scotland should take action to recognise non-binary people. ^[24]

6.7 It was also suggested that extending the provision of the draft Bill to include non-binary people would be in keeping with the Council of Europe Resolution 2048 which called on member states to 'consider including a third gender option in identity documents for those who seek it.' It was noted that many other countries already allow for the legal recognition of non-binary identities through 'X' markers in official documentation, with Australia, Canada, Denmark, India, Nepal, New Zealand and Pakistan among the countries cited.

6.8 Whilst it was acknowledged that introducing non-binary recognition would be more complex than the proposed reforms covering binary trans people, it was also suggested that wider and more comprehensive measures to recognise non-binary people need to be supported by full legal gender recognition.

Ordinarily resident in Scotland

6.9 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.

6.10 In addition to queries as to what is meant be ordinarily resident in Scotland, there were also concerns about who might be prevented from applying for a GRC because of this requirement. Particular groups identified, and who those raising this issue generally felt should be able to apply for a GRC, included:

• Asylum seekers and refugees. It was suggested that trans refugees or those seeking asylum in Scotland may be doing so to escape transphobic discrimination and violence in their country of origin, where they may not have had access to legal gender recognition. Clarification was sought as to whether asylum seekers and refugees would meet the conditions, including while their application for the right to remain is ongoing.
• Those who have come to Scotland to study.

6.11 It was also suggested that those moving to Scotland may wish to have their gender legally recognised upon their arrival, and therefore wish to apply before they have become resident in Scotland and that the removal of the 3 month reflection period (as discussed at Question 2) would help facilitate this.

6.12 However, there was also a concern that if it were possible to apply for a GRC without having been resident for a period of time, some people, and particularly younger people, could make a hasty decision, potentially without thinking through the implications of that decision in the longer term. This included a concern about how any decision, for example when in Scotland to study, could affect their future if they move away from Scotland.

6.13 There were also occasional concerns that without appropriate restrictions being in place, Scotland could become a gender tourism destination, particularly for residents of England, Wales or Northern Ireland. The concern was that people might visit and stay in Scotland for a short while only in order to obtain a GRC.

Other jurisdictions

6.14 On a similar theme, there were questions about whether sufficient consideration has been given to potential UK-wide effects of the proposed legislation.^[25] It was reported, for example, that different cross-border arrangements could mean that people born in Scotland and living in other parts of the UK could obtain a Scottish GRC based on declaration, or that people could also qualify by moving to Scotland for a relatively short period.

6.15 There was support for the provisions that have been made within the draft Bill for those who have obtained overseas gender recognition and it was suggested that a statutory declaration-based system would enable a proportion of those who have obtained gender recognition outwith the UK to have their gender identity automatically recognised in Scotland. However, there was some disappointment at the suggestion that recognising trans young people under 16 and non-binary people who had obtained legal gender recognition overseas might be deemed 'manifestly contrary to public policy'.^[26]

Protected information and privacy

6.16 Section 22(1) of the draft Bill makes it a criminal offence for a person who has acquired 'protected information' in an 'official capacity' to disclose the information to any other person.^[27] There are a variety of exceptions in section 22 and the Scottish Government have suggested that they may introduce additional exceptions.

6.17 Those who commented on this issue generally thought that additional exceptions to section 22 are not needed. Upholding trans peoples' privacy was described as a key principle of a legal recognition process, with additional exceptions having the potential to undermine this.

6.18 The Human Resources-related example given in the consultation paper^[28] was a cause of some concern and was seen as green-lighting a serious invasion of privacy. It was described as unnecessary and unjustifiable, as representing the type of situation which could lead to a trans person being harassed and humiliated in the workplace, and as an example of why many trans people experience difficulties in securing and sustaining employment.

6.19 However, there was also a concern that consideration may not have been given to whether the section 22 privacy provisions might be attractive to anyone wishing to conceal aspects of their past, including in relation to criminal convictions, and whether the provision could actually provide an incentive to apply for a GRC.

6.20 Another concern was that the proposed changes would be likely to result in trans people whose birth sex remains recognisable receiving a GRC, along with people who do not intend to undergo any physical change as part of their transition. It was argued that the section 22 provisions were put in place to protect the privacy of those whose transition would otherwise not be obvious and there was a query as to how they would be expected to operate when this was not the case.

Spousal veto and interim GRCs

6.21 The draft Bill provides that an application for a GRC must include a statutory declaration by the applicant as to whether the applicant is married or in a civil partnership.^[29] As per amendments set out in the Marriage and Civil Partnership (Scotland) Act 2014, there would be no requirement for spousal consent to an application, and applicants in Scotland could not ultimately be blocked by their partner from obtaining gender recognition.

6.22 However, as at present, the Registrar General would be required to grant an interim gender recognition certificate, as opposed to a full certificate, to applicants who are parties to a marriage or civil partnership but where the spouse or civil partner does not wish the marriage or civil partnership to continue after the issue of a full certificate. Within 6 months of the issue of the interim certificate, the applicant would be able to apply to the sheriff for a full certificate, which the sheriff would be required to issue so long as circumstances had not changed.

6.23 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.

6.24 Others had a very different perspective and were concerned that under the existing and, based on the current proposals, continuing arrangements 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.

'A person who has an interest in a gender recognition certificate'

6.25 Section 8 of the draft Bill enables a 'person who has an interest in a gender recognition certificate' to apply to the sheriff to have the certificate revoked on the grounds of the applicant being incapable of understanding the effect of obtaining the certificate or incapable of making the application.

6.26 There was a call for greater clarity about who 'a person who has an interest' might be, sometimes connected to a concern that the provision could be used to make frivolous or vexatious applications to the sheriff to revoke a trans person's GRC. Examples given included that of an unsupportive family member, or former spouse, who might seek to cause difficulties for a trans person who they would prefer had not obtained legal gender recognition.

Offence of making false declaration or application

6.27 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.^[30] 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, with these comments sometimes connected with whether an individual with a GRC would be able to have it revoked under certain circumstances (as discussed at Question 2).

6.28 It was noted that it is already a criminal offence to knowingly make a false statutory declaration^[31] and there was an associated query as to why any further or specific provision - as presented at section 22A(1) of the draft Bill - would be required.

6.29 However, there was some support for the provision at section 22A(2) which creates an offence of including any other information that is false in a material particular in an application for a GRC.^[32] This was because, unlike for the statutory declaration, there may not otherwise be a broader offence that would apply.

6.30 For others the focus was on whether the provision would effectively criminalise a person who has been granted a GRC but who subsequently wishes to reverse their gender recognition. There was also a concern that the creation of a new offence would have a stigmatising effect on those who are already a marginalised community and that the threat of, or anxiety about, being criminalised could act as a considerable deterrent, particularly to young people, who wish to legally change their gender. Other concerns raised included that:

• It is unclear how it can be proven that someone has abused the process and equally who is harmed in the event that someone wishes to reverse their gender recognition.
• Having an additional offence may facilitate harassment of trans people, with a significant risk of trans people being accused maliciously by anti-trans individuals or groups.
• It would be particularly inappropriate to criminalise non-binary people who have no malicious intent but are simply trying to find a more bearable way of living whilst waiting for legal non-binary recognition.

Application fee

6.31 The Bill makes provision for the Registrar General to charge fees for applications.

6.32 Concerns raised about the financial resources required to go through the current GRC application process were noted at Chapter 3. In addition to these more general concerns, there were also references specifically to the current £140 fee.^[33] It was reported that the current 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 or explained that the current fee was a barrier to them being able to apply for a GRC.

6.33 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, as the proposed system does not require there to be a tribunal.

6.34 Further comments included that it will be important that any fee is set at a level where it does not become a barrier to application, particularly for those from socio-economically disadvantaged backgrounds and it was suggested that any proposed fee structure should be Equality Impact Assessed. Others were clear that no fee should be payable, including to ensure that trans people cannot be priced out of accessing legal gender recognition.