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

6. How have you consulted with relevant stakeholders, including involving children and young people in the development of the policy/measure?

6.1. The Scottish Government carried out a consultation from 9 November 2017 to 1 March 2018^[8] 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").^[9]

6.2. In addition to the two consultations, the Cabinet Secretary for Social Justice, Housing and Local Government met members of LGBT Youth Scotland in December 2021. Scottish Government officials met members of LGBT Youth Scotland groups aged 13 and over in 2017. The Cabinet Secretary for Social Security and Older People has met with members of the LGBT Youth Commission on Gender Recognition and the Minister for Older People and Equalities also met a group of young people from LGBT Youth Scotland. The groups expressed their strong view that a person should be able to transition and live with documentation consistent in disclosing their acquired gender before they have to take their qualifications or go to university. They felt that this would better support their rights not to be discriminated against, for example, at school. A high proportion expressed the desire for their parents (or other people with responsibility for them) to be involved and supporting them through the recognition process. However, they were also of the view that legal gender recognition should be made available to people younger than 16 and for those who identify in a non-binary way and not as men and women, boys and girls.

6.3. Prior to publication of the 2017 consultation, the Scottish Government met:

• Members of LGBT Youth Scotland^[10] groups aged 13 and over; and
• Gender identity specialists from the Sandyford Clinic,^[11]
• Gender identity specialists from the Chalmers Centre in Edinburgh;^[12]and
• a representative from the support group TransparenTsees,^[13] which supports parents and family members as well as children and young people.

The 2017 consultation: views on proposals

6.4. The 2017 consultation sought views of respondents on reducing the age at which gender recognition can be obtain from 18 to 16, on whether gender recognition should be extended to those under 16 and if so, what the best option was for doing so.

6.5. A majority of respondents to the 2017 consultation, (61% of those answering the question), agreed that people aged 16 and 17 should be able to apply for and obtain legal recognition of their acquired gender.

6.6. Around 4 in 10 respondents who were in favour of this proposal considered that it is in line with other age-related rights and legal provisions in Scotland. Around 1 in 5 of such respondents commented that, by age 16, young people know their own minds and have the capacity and understanding to make their own choices and decisions. Further comments included that young people should be enabled to make decisions for themselves and that the UNCRC requires that minors are not discriminated against and that they are heard according to their maturity and evolving capacity in all matters that concern them.

6.7. Respondents in favour of the proposal to reduce the minimum age for legal gender recognition to 16 also highlighted ways in which being able to obtain a GRC could help young people in moving into adulthood. Around 1 in 6 respondents in favour of the proposal pointed to the positive impact it could have on 16- and 17-year olds' health and wellbeing. Respondents commented on the very significant and detrimental effect that not being able to obtain legal recognition of their gender can have on the mental health of the young people affected.

6.8. Of around 2,540 respondents who disagreed with the above proposal, 7 in 10 commented that 16 years old is too young to be able to apply for and obtain legal recognition. Many issues were raised including the comment that 16 is too young to make a life-changing decision. Some respondents suggested that 16 and 17-year olds are often still going through puberty and may not yet be clear about their gender identity or sexuality. Around 1 in 5 commented on the potential confusion, particularly around their gender identity and sexuality that young people may experience. Further points included that gay or lesbian young people may see themselves as trans rather than recognising and accepting their sexuality.

6.9. Respondents who disagreed with this proposal noted that there are services that do not treat 16- and 17-year olds as adults. Examples given included that 16- and 17-year olds are still considered children from a clinical perspective and that young people held in custody are considered to need enhanced levels of protection compared with adults. Neither the GRA nor the draft Bill make provision relating to medical treatment or support.

The 2017 consultation: views on the draft CRWIA for that consultation

6.10. Specifically on the draft CRWIA published with the 2017 consultation, the independent analysis of the consultation responses noted the following points made by consultation respondents:

• There is no consideration of the impact on children who are not trans of being in single sex spaces with a child who is trans.
• That Article 3(3), which covers the care or protection of children, particularly in the areas of safety and health, may be relevant in relation to health advice and treatment provided to trans children and to children concerned about their gender identity.
• On Article 5, some respondents considered that the right to gender reassignment is not recognised in the UNCRC.
• Article 13, on children's right to freedom of expression, could be an issue if children are considered transphobic if they for example questioned a trans child or professionals may feel they are transphobic if they were to offer an alternative view.
• Article 17, which covers the important function performed by the mass media and ensuring that children have access to information and material from a diversity of national and international sources, may be relevant in relation to trans children and there may be actions the Scottish Government could take in relation to the supply of information to meet the needs of individual trans children and to meet the wider needs of children.

6.11. On single sex spaces, the consultation on the draft Bill sets out relevant provisions of the Equality Act 2010, which make exceptions to the general provisions of that Act on non-discrimination. The 2010 Act is mainly reserved to the Westminster Parliament. Some of these exceptions are relevant when considering the position of non-trans boys and girls in relation to gender recognition. Further information is available in the draft EQIA at Annex J on the outcomes of this review.

6.12. The draft Bill does not affect the professional responsibilities of those offering treatment and support to those distressed or concerned about their gender identity, nor does it otherwise affect the right to access such services in Scotland.

The 2019 consultation: views on the draft Bill.

6.13. The 2019 consultation sought views of respondents on whether the minimum age for applying for legal gender recognition should be reduced to 16.

6.14. Just over half of the 9,401 respondents (56%) answered 'yes' when asked whether the minimum age at which a person can apply for legal gender recognition should be reduced from 18 to 16, while 42% thought it should not and 2% did not know. This comprised 54% of the 107 organisations and 56% of the 9,294 individuals who responded. However, based on the comments made, it appears that some respondents who answered 'yes' did so meaning that they wished to make a comment rather than to indicate support for the proposal. Likewise, based on their comments to other questions, some respondents who answered 'no' to this question may have done so to express that they did not want to make a comment.

6.15. Respondents who identified themselves as resident in Scotland were evenly divided, with 49% agreeing that the age should be reduced to 16, 49% disagreeing and 3% saying that they did not know. The balance of views among organisations in Scotland was similar to organisations as a whole: of those in Scotland, 55% agreed and 39% disagreed.

6.16. Arguments in favour of the proposal to reduce the minimum age for legal gender recognition to 16 were similar to those raised in the 2017 consultation, including that a young person in Scotland is legally an adult at 16 and lowering the age would bring gender recognition in line with many others rights exercised at 16 (e.g. getting married, joining the army, gaining employment, voting in elections, consenting to medical treatment and surgery). Various positive impacts on mental health were noted in support of lowering the age to 16, including alleviate dysphoria and distress, improving wellbeing and quality of life, and reducing depression and suicide rates. Conversely, making younger people wait longer to have their gender legally recognised was suggested to be cruel and unnecessary, which could have negative impacts on mental health. Reasoning included the fact that children and young people are widely held to be credible authorities on their own lives, and their opinions or wishes are properly taken into account for most decision-making processes that involve or impact them. Supportive respondents argued that lowering the age to 16 would enable young trans people 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.

6.17. Among those opposed to the proposal to reduce the minimum age for legal gender recognition to 16, the majority made it clear that they did not think the age should be reduced at all. Some respondents stated a view that a 16-year-old is still a child, and some cited a the UNCRC as defining children as those aged under 18 years old. In support of the argument, some respondents cited a lack of emotional or life experience among 16 year olds, and referenced evidence suggesting that the brain does not mature fully until at least 25. It was argued that many of the rights exercised at 16 are reversible in a way that legal gender recognition does not appear to be. Some respondents had concerns that removing the need for a medical diagnosis of gender dysphoria could leave children without proper support for making the decision to seek legal gender recognition.

The 2019 consultation: views on the draft CRWIA for that consultation

6.18. The independent analysis of the 2019 consultation noted views on the accompanying CRWIA.

6.19. Respondents who were broadly supportive of the draft bill stated that the evidence presented in the draft CRWIA was robust and helpful, and that extension of legal gender recognition to 16- and 17-year olds was a reasoned response to available evidence. It was contended that the rights based arguments for lowering the age to 16 also apply to children under the age of 16, and that the impact on under 16s had not been properly considered.^[14] Comments were raised that the CRWIA focused on children experiencing gender incongruence and whether that would extend to adulthood, but not on children and young people who are confident of their gender. Challenges were made to the assertion that children and young people may not be 'clear' about gender or sexuality, and that furthermore sexuality should not be considered in relation to legal recognition of gender.

6.20. Respondents who were broadly opposed to a statutory declaration-based system often argued that the CRWIA does not consider the impact of the proposals on children other than those seeking to change their gender legally (i.e. all children), nor had there been consultation of children who are not trans. Concerns were also raised that the CRWIA downplays parental rights, and that the Scottish Government considers that the impact on and wellbeing of all children has been properly taken into account through the extensive public consultation process. Multiple organisations that responded to the consultation in support of reform and lowering the age to 16 are involved in the rights and wellbeing of all children and young people, not just trans children, and have provided responses in line with that remit. Examples of this include the charity Children in Scotland, the Scottish Children's Reporter Administration, the Scottish Human Rights Commission, and NUS Scotland.^[15]

Meetings with groups/organisations after the publication of the 2017 consultation^[16]

6.21. Since the 2017 consultation and during the 2019 consultation, the Cabinet Secretary for Social Security and Older People met with a range of groups to gather further information and evidence:^[17]

• Women's Spaces in Scotland;
• CARE for Scotland;
• The Free Church of Scotland;
• Equality Network;
• Stonewall Scotland;
• LGBT Health and Wellbeing;
• LGBT Youth Scotland;
• Scottish Women's Aid;
• Rape Crisis Scotland;
• Engender;
• Close the Gap;
• Zero Tolerance;
• The Chair of the First Minister's National Advisory Group on Women and Girls;
• Members of the Scottish Youth Parliament;
• Women and Girls in Scotland;
• For Women Scotland;
• Equality Network and Scottish Trans;
• Stonewall; and
• LGBT Youth.

6.22. In addition, Scottish Government officials met with:

• The Scottish Catholic Education Service;
• The Catholic Parliamentary Office of the Bishops' Conference of Scotland;
• MurrayBlackburnMackenzie.

6.23. The Cabinet Secretary for Social Justice, Housing and Local Government has met with:

• Stonewall Scotland
• Equality Network and Scottish Trans
• LGBT Youth
• LGBT Health and Wellbeing
• LGB Alliance
• For Women Scotland
• Fair Play for Women
• Women Voting With Our Feet
• Murray Blackburn Mackenzie
• Equality and Human Rights Commission
• Woman's Place UK
• Faith and Belief Representatives

6.24. In addition, Scottish Government officials met with:

• National Records of Scotland
• Children and Young People's Commissioner
• Scottish Civil Justice Council
• Engender
• Scottish Women's Aid
• Transgender Trend
• Women Speak Scotland

Correspondence

6.25. The points made in correspondence with Scottish Government concerning access to gender recognition for children and young people have also been considered. Such correspondence reflected the range of views expressed by respondents to the 2017 and 2019 consultations, as highlighted at paragraph 6.3 – 6.12 above.