Gender Recognition Reform (Scotland) Bill: child rights and wellbeing impact assessment

2. What impact will your policy/measure have on children's rights?

2.1. The Scottish Government considers that this Bill will have a positive impact on children's rights.

2.2. Under the current process, 16- and 17-year-olds are not permitted to apply for gender recognition, despite being able to vote, get married and consent to surgical and medical procedures at that age. This has been identified as a negative impact on trans young people. Lowering the application age to 16 enables young people aged 16 and 17 to obtain legal recognition of their gender. This would align with a number of existing areas in Scotland where young people obtain rights at 16. It would enable young applicants to have consistent documentation of their gender at a transitional age and would likely reduce their experience of discrimination as they go onto further education or enter employment.

2.3. The Scottish Government carried out a consultation from 9 November 2017 to 1 March 2018^[1] on proposals for reforming the GRA ("the 2017 consultation"), and a further consultation from 17 December 2019 to 17 March 2020 on a draft bill ("the 2019 consultation").^[2] A majority (56%) of respondents were in favour of lowering the minimum legal age for gender recognition to 16, and there were a range of differing opinions expressed on the possible impact on children and children's rights. There is more detailed discussion on the two public consultations at section 6 below.

2.4. The Scottish Government does not consider there to be robust evidence that lowering the application age to 16 would be harmful to children or young people, but that there is substantial evidence that keeping the age limit at 18 can negatively impact the wellbeing of young trans people and their ability to live dignified lives free from discrimination.

2.5. Some respondents to the consultation suggested additional safeguards such as parental consent, or a role for the courts of additional guidance could be put in place for young applicants. The Scottish Government has considered various options in relation to mentions of safeguarding in the consultation responses. As the point of this Bill is to reduce barriers to accessing a GRC on the basis of self-determination in order to reduce the harm that is caused under the current system, it is not considered to be in the best interests of trans young people to simply replace the current system with new barriers or additional hurdles.

2.6. Under the oversight of the Registrar General, National Records of Scotland will routinely give additional and careful consideration of applications from 16 and 17 year-olds. They will provide support on the process, and where necessary will undertake sensitive investigation, and this could include face-to-face conversations with applicants. NRS officials already have considerable experience working with 16- and 17-year olds, for example in regards to marriage, and giving careful consideration and support to ensure that young people are safeguarded while still having full access to their rights.

2.7. Every 16 or 17 year old who applies will be offered the option of a conversation with NRS to talk through the process.

2.8. In Ireland, applications by those aged 16/17 must be accompanied by a court order permitting their application to proceed. The court order is granted if there is parental consent and medical evidence about the young person's capacity and transition to their acquired gender. In November 2019, the Irish Minister published a response to the recommendations of a Review of the Act^[3] which included that the Government were minded to legislate to simplify the arrangements for those aged 16 and 17.

2.9. The Scottish Government is not aware of any robust evidence to suggest that any countries who have lowered the minimum legal age for gender recognition to 16 have experienced a negative impact on children's rights as a result.