Gender Recognition Reform (Scotland) Bill: consultation

2. A report about the mental health and wellbeing of trans people reported that of the 889 people surveyed, the average age at which participants began living part-time in their felt gender was 23 (based on 487 who answered the question). The average age at which they began living full-time as their felt gender was 31 (based on 545 people answering the question).^[181]

3. In the UK in 2007/2008, 392 people were issued with full GRCs. 67 (17%) were aged 58 and over.^[182] In 2018/2019, 323 people were issued with full GRCs and the number of successful applicants aged 58 and over was 13%.

4. A small-scale qualitative study (life-story interviews) with 6 older trans people in Sweden (aged 62-78) highlighted some additional age-related difficulties that older trans people might experience with transitioning.

Participants reported encountering attitudes questioning the value of transitioning later in life, that physical aging can make the performance of gender harder in some ways and fears about the amount of choice and control they may have over future care.

3. Tribunals and Gender Recognition Statistics (Ministry of Justice)

4. A. Siverskog, 2015. Ageing Bodies that Matter: Age, Gender and Embodiment in Older Transgender People's Life Stories. NORA: Nordic Journal of Women's Studies, 23(1): 4-19.

2. In the UK Government LGBT Survey carried out in 2017, 33% of trans participants indicated that they had a disability, whereas 14% of non-trans respondents said they did.^[184]

3. In the survey mentioned at 1 above, 36% identified that they had a mental health issue. 88% (of 549 who answered the question) had been diagnosed with depression or considered they were or had been depressed and 48% (of 483) had attempted suicide at least once.

4. Evidence indicates that the mental health issues experienced by trans people are related to the prejudice and discrimination they experience.^[185]

5. Evidence indicates that transitioning to the gender with which the person identifies helps resolve distress and mental health issues.^[186]

6. The Gender Identity Development Service (GIDS), commissioned by NHS England, has some information on its

evidence base of a higher prevalence of autistic spectrum conditions in clinically referred gender dysphoric (GD) adolescents than in the general adolescent population.^[187] This clinical observation is also reiterated in the wider international literature.

7. A 2016 literature review concluded that ‘Although the research is limited, especially for adults, there is an increasing amount of evidence that suggests a co-occurrence between gender dysphoria and ASD [Autism Spectrum Disorder]’ and that there is ‘a high prevalence of ASD in people with gender dysphoria attending clinical services’.^[188]

A subsequently published study found that ‘autistic traits appear to be more prevalent in transgender people assigned female at birth, but not in those assigned male at birth’.^[189]

The study compared the prevalence of autistic traits as measured by a self-report instrument between a sample of adults referred to a UK transgender healthcare service between 2012 and 2016, with a non-trans sample matched for age and sex.

No significant difference in autistic spectrum quotient (AQ) scores was found overall between the non-trans and trans groups, nor between groups for those assigned male at birth (non-trans men and trans women).

However, trans men were significantly more likely than non-trans women to have a higher AQ score.

The research found that the difference between groups mainly related to social behaviours, with less indication among the trans participants of difficulties around imagination or fascination with patterns and numbers, and the authors therefore hypothesise that this may indicate that ‘some transgender people do not really present with ASC [Autistic Spectrum Conditions] but the high levels of social difficulties due to anxiety, depression and years of victimisation may affect the way they interact with others’.

Studies to date have focused on prevalence rates and primarily with those who have been referred to a gender identity clinic. We are not aware of any studies discussing the influence of ASD diagnoses on treatment outcomes for gender dysphoria.^[190]

2. UK Government LGBT Survey Research Report July 2018

4. The Lancet Psychiatry 26 July 2016

5. Dhejne C, et al “Mental Health and gender dysphoria: A review of the literature” (2016) International Review of Psychiatry 28(1)

6. Information collated by the Gender Identity Development Service England.

Glidden, D., Bouman, W., Jones, B. & Arcelus, J., 2016. Gender dysphoria and autism spectrum disorder: A systematic review of the literature. Sexual Medicine Reviews, 4(1), 3-14.

7. Nobili, A., Glazebrook, C., Bouman, W., Glidden, D., Baron-Cohen, S., Allison, C., Smith, P. & Arcelus, J., 2018. Autistic Traits in Treatment-Seeking Transgender Adults. Journal of Autism and Developmental Disorders, 48: 3984-3994

The consultation outlines guidance available to notaries public and justices of the peace on this type of issue.

2. The average number of full GRCs issued annually across the UK since the 2004 Act was implemented is 384.^[191] Up to the end of 2018/19, the Gender Recognition Panel had issued 5,233 full GRCs.

3. One estimate of the number of trans people in Scotland is around 25,000. This is based on 0.5% of the population of Scotland. The Scottish Public Health Network Report on the Health Care Needs Assessment of Gender Identity Services suggests that 0.5% is the most often quoted likely prevalence of trans people.^[192]

4. Of the 1,160 self-selected trans people from Scotland who responded to the UK National LGBT Survey in 2017, 3.7% said that they owned a GRC.^[193] However this proportion also includes non-binary respondents who may be less likely to apply for a GRC. The methodology used means respondents are drawn from non-representative sample of LGBT people across the UK, and therefore it is not possible to generalise these findings to the Scottish trans population as a whole.

5. The UK LGBT Survey also asked trans people who had not applied for a GRC why they had not done so. The most common reasons that trans women in Scotland gave for having not applied for a GRC were the process being too bureaucratic (48%), not meeting the requirements (35%) and the cost of the application (33%). 10% said that they didn’t have the time, 11% said that they didn’t want to share their medical information, and 5% said that it was difficult to access their medical records.

For trans men, not meeting the requirements was the most common reason for not applying for a GRC (51%), followed by the application cost (37%) and the process being too bureaucratic (33%). 12% said that they didn’t have the time, 7% said that they didn’t want to share their medical information, and 6% said that it was difficult to access their medical records.

The differences between men and women may partly be explained by the different age profiles of the respondents, with trans men respondents being younger and fewer having completed transitioning.

6. A qualitative study which conducted in-depth interviews with 28 trans individuals living in Scotland in 2012-2014 found that the complex bureaucratic nature of the current GRC application process meant that most of the research participants ‘who intended to permanently transition, whether through medical procedures or not, chose to rather change their name officially by deed poll or statutory declaration, legally allowed for anyone in the UK.’

7 In Ireland, 3 people out of the 517^[194] who have obtained a GRC asked for it to be revoked (because they no longer wished to be recognised in an acquired gender). This is 0.6%.

8. In a survey of 889 trans people in 2011, in discussing the physical changes which they had undergone in relation to being trans or transitioning, 86% had no regrets, with 10% having minor regrets and 2% having major regrets. In terms of social changes that they had made in relation to being trans or transitioning, 53% (of 523) had no regrets. 34% had minimal regrets, and 9% had significant regrets.^[195]

9. A Swedish study published in 2014 examined the outcomes of applications in Sweden for legal and surgical sex reassignment^[196] between 1960 and 2010. This indicated that out of the 681 people who changed their sex legally and surgically, 2.2% of them later regretted this and sought to reverse their decision. The study reported a significant decline in regrets over the time period.

10. A web-based survey conducted in Sweden in 2014 using an anonymous, self-selected sample of 796 trans individuals aged 15-94 found a correlation between trans people not having gender recognition and poorer reported quality of life.

Both wanting to change legal gender and having changed legal gender were also correlated with poor self-rated health, although the association was smaller among those who had changed legal gender. The authors conclude that: ‘These results suggest that … increased access to legal gender recognition could improve the overall health and quality of life of trans people in Sweden.’

11. There is some evidence regarding numbers of applicants for legal gender recognition from countries which have adopted self-declaration systems. In Denmark (pop. 5.8 million),^[197] on average 289 people per year obtained legal gender recognition. In Norway (pop. 5.3 million),^[198] where a self-declaration system for legal gender recognition was adopted in 2016, 706 people obtained legal gender recognition in the subsequent nine month period.

2. Tribunals and Gender Recognition Statistics (Ministry of Justice)

3. The Scottish Public Health Network Report on the Health Care Needs Assessment of Gender Identity Services

4. Government Equalities Office, National LGBT Survey (2017)

5. Government Equalities Office, National LGBT Survey (2017)

6 S. Morgan, 2017. Constructing Identities, Reclaiming Subjectivities,

Reconstructing Selves: An Interpretative Study of Transgender Practices in

Scotland. PhD thesis, University of Glasgow.

7 Information provided by the Government of Ireland.

8. Trans Mental Health and Emotional Wellbeing Study 2012, Jay McNeil, Louis Bailey, Sonja Ellis, James Morton & Maeve Regan

9. Dhejne, Cecilia et al (2014). “An Analysis of All Applications for Sex Reassignment Surgery in Sweden, 1960-2010: Prevalence, Incidence, and Regrets”, Archives of sexual behavior. 43

10. Zeluf G. et al., 2016. Health, disability and quality of life among trans people in Sweden: A web-based survey. BMC Public Health, 16(1): 1-15.

11. Source is Danish Ministry of Social Security and the Interior, and Norwegian Ministry of Health and Care.

The Scottish Government is not aware of evidence that obtaining legal gender recognition overseas through such a process leads to adverse consequences generally for society.

However, the Scottish Government will continue to monitor this before introducing a Bill into the Scottish Parliament to establish a statutory declaration based system for obtaining legal gender recognition.

The Scottish Government considers the key question is whether moving to a statutory declaration based system for obtaining legal gender recognition produces benefits for Scotland, when compared with the current system in Scotland for obtaining legal gender recognition.

2. Between 2010/11 and 2017/18, there were nine divorces in Scotland and two dissolutions of civil partnerships on the ground that an interim GRC had been issued to one of the parties to the marriage.

2. Scottish Government Civil Justice Statistics.

The methodology used means respondents are drawn from non-representative sample of LGBT people across the UK, and therefore it is not possible to generalise these findings to the Scottish trans population as a whole.

In particular, respondents were typically younger than the general population and may not have been sampled proportionately across local authorities. Within the Scottish general population younger age groups are more ethnically diverse, and the proportion of minority ethnic people differs between local authorities.

2. There is no statistical evidence published about the ethnic origin of people who are issued with a full GRC under the GRA.

The methodology used means respondents are drawn from non-representative sample of LGBT people across the UK, and therefore it is not possible to generalise these findings to the Scottish trans population as a whole.

In particular, respondents were typically younger than the general population and may not have been sampled proportionately across local authorities. Within the Scottish general population a higher proportion within younger age groups belong to no religion, and the

proportion of the population belonging to different religions varies between local authorities.

2. A number of respondents to the previous consultation noted that the proposed changes to the system for obtaining legal gender recognition could impact on women whose religion or belief prevented them from sharing spaces with men. Use of public toilets, changing rooms and refuges and participation in sport were given as examples.^[202]

On this point, and as outlined in more detail in Chapter 5 of the consultation and later on in this EQIA, there are a number of exceptions in the Equality Act 2010 which allow trans people to be excluded in specified circumstances when this is proportionate and to achieve a legitimate aim.

3. Some respondents to the previous consultation noted that gender reassignment may be contrary to religious beliefs held by some.

The Scottish Government appreciates that some religious bodies may be opposed to the concept of legal gender recognition.

However, as outlined in the consultation, the Scottish Government considers that a gender recognition system is required in Scotland for both policy reasons and to comply with the European Convention on Human Rights.

Other religious or belief bodies may, of course, support the concept of legal gender recognition.

As outlined in Chapter 5 of the consultation, and later on in this EQIA, there are exceptions in the Equality Act 2010 which allow trans people to be excluded from certain forms of religious employment and also allow an approved celebrant to refuse to solemnise the marriage, or register the civil partnership, of a person that the celebrant reasonably believes acquired their gender under the GRA.

2 Consultation responses.

2. However, the proportion of trans men (female to male) being legally recognised under the GRA has increased over time.

3. In 2005/06, 1,181 full GRCs were granted (there was pent up demand for legal gender recognition in the early period after the GRP was established). 912 (77%) of these were to trans women and 269 (23%) to trans men.

4. In 2008/09, 241 full GRCs were granted. 191 (79%) were to trans women and 50 (21%) to trans men.

5. In 2018/19, 323 full GRCs were granted. 198 (61%) were to trans women and 125 (39%) to trans men.^[203]

6. The position in the UK similarly reflects the apparent position in other countries that there are more trans women than trans men.^[204]

7. In Ireland, of the 517 people who have been recognised between September 2015 and August 2019, 233 (41%) were trans men (recorded as female at birth).

8. A number of respondents to the previous consultation raised concerns about the implications of legal gender recognition for women.

Concerns included:

• access to women’s safe spaces;
• risk of abuse;
• a perceived erosion of the rights of women;
• women’s sports,
• intimate medical care;
• the accuracy of statistical information in areas such as crime recording or equality monitoring;
• freedom of speech.^[205]

On these points, Chapter 5 of the consultation, and this EQIA (later on) outline exceptions in the Equality Act 2010 which can be used in specified circumstances, when it is proportionate and to achieve a legitimate aim, to exclude trans people from single sex services and to exclude trans women from sporting competitions for women. There are also exceptions which can be used in relation to occupational requirements.

These exceptions will remain in place after reform of the Gender Recognition Act 2004.

On data, the Scottish Government has established a working group on sex and gender in data.^[206]

On freedom of speech, the Scottish Government is fully committed to this and there are provisions in the European Convention on Human Rights to protect freedom of speech.

9. There is a lack of any evidence around the actual experienced impacts of trans inclusion in services.

Much of the literature identified does not justify a blanket exclusion of trans women from services or spaces (they themselves are a vulnerable group), but rather highlights the need for individual assessments and tailoring the service for each individual’s needs, where they are also likely to encompass a wide variety of things unrelated to an individual’s sex or gender identity.

10. The Scottish Government has not identified any evidence supporting the claim that trans women are more likely than non-trans women to sexually assault other women in women-only spaces. Much of the literature reiterates this lack of any evidence, legal, medical or otherwise, to support this characterisation of trans women as ‘deviant’ or predatory.^[207]

In addition to concerns about the inclusion of trans women in women-only spaces and services, some respondents expressed concerns that predatory men posing as trans women would seek to gain access to

women only spaces and services for malicious reasons.

11. The Scottish Government has not identified any evidence supporting a link between women-only spaces being inclusive of transgender women, and non-trans men falsely claiming a trans identity to access these spaces and commit sexual violence. Other sources identified reiterated that there is a lack of any evidence to support this claim.

7. Information provided by the Government of Ireland.

8. Consultation responses.

9. Gottschalk, L., 2009. Transgendering women's space: A feminist analysis of perspectives from Australian women's services. Women's Studies International Forum, 32(3): 167-178.

10. Dunne, P., 2017. (Trans)forming single gender services and communal accommodations. Social and Legal Studies, 26(5).

Eckes, S., 2017. The restroom and locker room wars: Where to pee or not to pee. Journal of LGBT Youth, 14(3): 247-265.

11. Dunne 2017 and Eckes 2017

2. Of the 530 self-selected respondents to the 2012 Scottish Transgender Alliance survey who answered the question about sexual orientation, around a quarter identified as bisexual (27%) and another quarter identified as queer (24%). A fifth (20%) identified as straight or heterosexual.^[209] Again, this was not a random sample and so findings cannot be assumed to be representative of the trans population as a whole.

3. Respondents to the first consultation made a number of comments in this area, including suggestions that:

• gender non-conforming children are being encouraged to transition when they would otherwise grow up to be lesbian or gay;
• gay and lesbian people are coming under increasing social pressure to change their gender rather than to live as gay or lesbian;
• lesbians may be accused of transphobia if they refuse to enter sexual relationships with trans women;
• when lesbian organisations or advocacy groups are joined by trans women, trans issues often take priority.^[210]

On children, the Scottish Government has concluded that legal gender recognition should not be available to those under 16.

On lesbian and gay people, the Scottish Government considers that people should be able to live as lesbian and gay. This Government promoted the Marriage and Civil Partnership (Scotland) Act 2014 through Parliament. A key reason for promoting that legislation was to make it clear that same sex relationships have the same standing in society as mixed sex relationships.

On relationships, Government does not lay down who a person should enter into a relationship with. That is a personal matter for the individuals concerned.

On organisations, the rules in the Equality Act 2010 on membership and access to a benefit, facility or service, do not apply to associations with under 25 members.^[211] In addition, there is an exception which allows an association to restrict its membership to persons who share a single protected characteristic.^[212]

2. Scottish Transgender Alliance, Trans Mental Health Study 2012.

3. Consultation responses.

People aged 16 and 17 would be able to apply.

The Scottish Government appreciates that some religious bodies may be opposed to the concept of legal gender recognition. There are protections in the Equality Act 2010 outlined below for the interests of religious bodies.

However, as outlined in the consultation, the Scottish Government considers that a gender recognition system is required in Scotland for both policy reasons and to comply with the European Convention on Human Rights.

Other religious or belief bodies may, of course, support the concept of legal gender recognition.

There are exceptions in the Equality Act 2010 which relate to occupational requirements and religious requirements.

Paragraph 2 of schedule 9 of the 2010 Act relates to religious requirements, and covers a range of employment and office holders in organised religion, such as ministers of religion and some lay posts that promote and represent religion. If the criteria are met, it is possible to refuse to employ a trans person in these posts.

Paragraph 3 of schedule 9 relates to other requirements relating to religion or belief, where, if the criteria are met, it is possible to refuse to employ a trans person for the work.

Given the provisions of the 2010 Act, we have ticked the “none” box.

Concerns included:

• access to women’s safe spaces;
• risk of abuse;
• women’s sports;
• intimate medical care;
• the accuracy of statistical information in areas such as crime recording or equality monitoring;
• freedom of speech.

The Scottish Government is of the view that there is lack of evidence that including trans women in women-only services and spaces has negative impacts.

The 2010 Act has a number of specified exceptions to the general provisions on non-discrimination. Some of these exceptions are directly relevant when considering the position of women in relation to gender recognition. Organisations and service providers can, when appropriate, make use of the exceptions in the 2010 Act to exclude trans people. However, the exceptions have to be used in a proportionate way, and to achieve a legitimate aim.

On sport, section 195 of the 2010 Act contains provision allowing, in certain specified circumstances, restrictions on trans people participating in sport to be imposed if necessary to uphold fair competition or the safety of competitors.

On single sex services, the 2010 Act allows women-only services and allows services to exclude trans women in certain specified circumstances when it is proportionate and in pursuit of a legitimate aim. Paragraph 28 of schedule 3 the 2010 Act sets out the exception which relates to trans persons, and provides:

(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

(a) the provision of separate services for persons of each sex;

(b) the provision of separate services differently for persons of each sex;

(c) the provision of a service only to persons of one sex.

This provision would, for example, allow the operator of a domestic abuse refuge designed for women only to exclude a trans woman from the service if the operator judges that this is a proportionate means of achieving a legitimate aim. This is likely to involve carrying out a risk assessment to balance the needs of all parties: the trans person; other users of the service and staff.

On data, the Scottish Government has established a working group on sex and gender in data.^[214]

On freedom of speech, the Scottish Government is fully committed to this and there are provisions in the European Convention on Human Rights to protect freedom of speech.

Given the various provisions in this area, we have ticked the “none” box.

• gender non-conforming children are being encouraged to transition when they would otherwise grow up to be lesbian or gay;
• gay and lesbian people are coming under increasing social pressure to change their gender rather than to live as gay or lesbian;
• lesbians may be accused of transphobia if they refuse to enter sexual relationships with trans women;
• when lesbian organisations or advocacy groups are joined by trans women, trans issues often take priority.^[215]

On children, the Scottish Government has concluded that legal gender recognition should not be available to those under 16.

On lesbian and gay people, the Scottish Government considers that people should be able to live as lesbian and gay. This Government promoted the Marriage and Civil Partnership (Scotland) Act 2014 through Parliament. A key reason for promoting that legislation was to make it clear that same sex relationships have the same standing in society as mixed sex relationships.

On relationships, Government does not lay down who a person should enter into a relationship with. That is a personal matter for the couple.

On organisations, the rules in the Equality Act 2010 on membership and access to a benefit, facility or

service, do not apply to associations with under 25 members.^[216] In addition, there is an exception which allows an association to restrict its membership to persons who share a single protected characteristic.^[217]