Gender Recognition Reform (Scotland) Bill: consultation

Ministerial Foreword

In a statement to the Scottish Parliament in June, I announced that the Scottish Government would consult on a draft Bill to reform the process by which trans people gain legal recognition of their lived gender through a Gender Recognition Certificate – a right they have had for 15 years.

The reforms to the Gender Recognition Act 2004 we propose were consulted on in 2017/18. We received over 15,500 responses with the majority showing support for reform.

Since that consultation, the debate on gender recognition has become polarised, both in Scotland and elsewhere. A vigorous but respectful debate is a hallmark of a mature democracy. However, what is not acceptable is some of the transphobia and misogyny we have witnessed, and abusing others in the course of any debate.

I recognise that people have concerns and I hope this consultation will alleviate those by explaining exactly what the Scottish Government is proposing. Just as important is to state what we are not proposing to introduce or to change.

History shows us that living as a different gender is not new. What is relatively new is that we recognise the rights of trans people and the discrimination they face in society. To comply with international human rights law, Scotland must have a system for obtaining legal gender recognition. Since 2004, trans people across the UK have had the right to legally change their gender through applying for a Gender Recognition Certificate. For a number of years, transgender people have been able to apply for other documentation in their acquired identity such as their passport and driving licence. Since 2010, the UK Equality Act 2010 has recognised gender reassignment as a protected characteristic.

What the Scottish Government is proposing is to amend the way in which a trans person can obtain that Certificate. The current system is viewed by many applicants or would-be applicants as demeaning, lengthy, stressful and expensive.

This proposal is in line with the approach of a number of other countries, including the Republic of Ireland, Norway, Malta, Denmark and Belgium. Where that has been done, the impact has been positive for the trans community and without a detrimental impact on others.

Many of the issues I have seen raised are not to do with the proposals in this draft Bill. Rather they are to do with the inequality that continues to impact on women and girls more generally. As a Government, we will continue to address that.

We recognise that there are men who seek to abuse women and we want women to be safe from that violence. We have taken action to change the law to protect women from such abuse. This is a global issue and not a new issue for Scotland or indeed the UK. And it is not the fault of trans people. It is the fault of the abusive men. Which is why we will continue to address violence against women and girls through our Equally Safe strategy which takes a gendered approach.

Reform of the Gender Recognition Act 2004 will not change our approach.

Nothing in what we are proposing will change the exceptions in the Equality Act 2010 which allow trans people to be excluded when this is a proportionate means of achieving a legitimate aim – for example single sex services, employment, health services. Those exceptions are very important and the Scottish Government would encourage any organisations and service providers to know their rights on this issue.

Obtaining a Gender Recognition Certificate will remain a serious and lifelong commitment. Trans people will still make a statutory declaration to this effect and people will still be subject to criminal proceedings for lying or making false applications.

What we are proposing in this draft bill, and seeking your views on, is for the Registrar General to issue the Certificate rather than the Gender Recognition Panel as per the current process, and to reduce the time where someone has to live in their acquired gender from 24 months to 6 months.

As you will see in the draft Bill we also do not propose to change public policy. I recognise that some organisations have changed policies which are not required in law. And I know that they have done so in a well-intentioned attempt to be trans inclusive. However they may have unintentionally made changes that make women feel uncomfortable and less safe. They need to take account of everyone’s rights when any changes are being considered, to ensure all rights, particularly those of women and trans people, are protected. This includes the protection of women’s rights and safe spaces.

We will continue to address gender inequality. We will continue to promote and protect and extend the hard won rights of women.

And I will play my part in ensuring that we hold fast to our principle of trans inclusion whilst recognising, protecting, respecting, and advancing the rights of women and girls.

Throughout the consultation time and beyond, I will continue to have an open door policy to all those who wish to discuss our proposals. I will continue to be respectful and listen to others and would urge everyone with an interest in this consultation to do the same.

Shirley-Anne Somerville
Cabinet Secretary for Social Security and Older People