Gender Recognition Reform (Scotland) Bill: consultation

CHAPTER 3: THE CASE FOR REFORMING THE GRA

The current system for obtaining legal gender recognition in the UK

3.01. The GRA is UK wide legislation permitting a person aged at least 18 to make an application for a GRC. Applications are handled by the Gender Recognition Panel (“the GRP”), a UK Tribunal. Successful applicants receive either an interim GRC, which does not give legal recognition, or a full GRC which does give legal recognition. This process has been place since 2005.^[11]

3.02. Under the GRA there are three routes or “tracks” by which a person can seek legal recognition of their acquired gender: the standard, the alternative and the overseas tracks.

3.03. The standard track is most often used by applicants.^[12] The standard track can be used by applicants who:

• have been diagnosed with gender dysphoria (section 2(1)(a) and section 25 of the current GRA);
• have lived in their acquired gender throughout a period of two years immediately prior to their application (section 2(1)(b)); and
• intend to live in their acquired gender for the rest of their life (section 2(1)(c))

3.04. Applicants under this route must provide two medical reports to the GRP. One from a registered medical practitioner or registered psychologist who is practising in the field of gender dysphoria must include details of the diagnosis (section 3(1) and (2)). The second report must be from a registered medical practitioner and must include details of any treatment the applicant is receiving and whether they have undergone, are undergoing, or planning to undergo surgery to modify sexual characteristics (section 3(1) and (3)).

3.05. Published guidance^[13] confirms that, along with their application, applicants must provide documentary evidence that they have lived in their acquired gender throughout the period of two years prior to their application (section 3(6)(b),(c)).

3.06. Applicants under the standard track must also make and submit a statutory declaration with their application that they meet the conditions of having lived in their acquired gender for the required two year period and intend to continue to do so until death (section 3(4)). The statutory declaration must also state whether or not the applicant is married or a civil partner (section 3(6)(a)).

3.07. An application must include any other information which the GRP may require (section 3(6)(c)).

The alternative track

3.08. The alternative track arrangements are set out in 3A-3F of the GRA. The alternative track can be used by applicants who:

• have been diagnosed with gender dysphoria or who have had surgery for the purpose of changing their sexual characteristics [Applicants must provide a medical report from a registered medical practitioner or registered psychologist with details of the diagnosis or surgery];
• ordinarily reside in England, Wales or Scotland;
• intend to live in their acquired gender for the remainder of their life;
• are in a marriage solemnised in Scotland or civil partnership registered in Scotland or a marriage or civil partnership made in England and Wales on or before the date of the application; and
• have lived in their acquired gender for at least 6 years before either of 10 December 2014 or 16 December 2014 (depending on which of the two jurisdictions their marriage or civil partnership was solemnised, registered or made in).

The overseas track

3.09. The overseas track can be used by an applicant if their acquired gender has been legally accepted in one of the approved countries or territories.^[14] The applicant must provide evidence of this with their application (section 3(5)) and a statutory declaration as to whether or not they are married or a civil partner (section 3(6)(a)).

Applicants who are married or in a civil partnership

3.10. Under the GRA as enacted, people who were married or in a civil partnership had to end their marriage or civil partnership before a full GRC could be issued. At that time, the GRP would issue an interim GRC to married applicants and applicants in civil partnerships. The issue of an interim GRC is a ground for divorce under the Divorce (Scotland) Act 1976, and of dissolution of a civil partnership. Once a marriage or civil partnership had ended the court could then issue a full GRC (section 5(1)).

3.11. These arrangements were altered when same sex marriage was introduced in Scotland, and in England and Wales, to allow for marriages constituted in either jurisdiction to continue where one or both of the parties change their gender and both wish to remain married.

3.12. The GRP are required to treat married applicants who otherwise meet the requirements for gender recognition as follows in terms of interim/full GRCs:

• where the applicant is in a marriage solemnised in Scotland (a ‘protected Scottish marriage’) or a marriage made under the law of England and Wales or outwith the UK (a ‘protected marriage’), and their spouse has issued a statutory declaration of consent to remaining in the marriage following gender recognition, the GRP must issue the applicant with a full GRC (section 4(2) and section 4(3C)).
• where the applicant is in a protected Scottish marriage or a protected marriage but either does not wish to remain married after gender recognition, or their spouse has not issued a statutory declaration of consent to remain married following gender recognition, the GRP must issue them with an interim GRC (section 4(3) and section 4(3D)).
• If the applicant is in a marriage made under the law of Northern Ireland, they will receive an interim GRC (section 4(3) and section 4(3D)).

3.13. For applicants with an interim GRC who are in a protected Scottish marriage, they do not need to end their relationship in order to obtain a full GRC. Once an interim GRC has been issued, such an applicant can apply to the Sheriff Court for a full certificate (section 4E), but must make the application within 6 months from the date of the interim GRC’s issue.

3.14. Provision is made for the GRP to issue a full GRC to an applicant whose spouse consents after an interim GRC is granted or who dies after an interim GRC is granted. Where a non-consenting spouse dies after the issue of an interim GRC, the GRP can issue a full GRC (section 4A(2) for a marriage made in England and Wales or outwith the UK and section 4C for those in a marriage solemnised in Scotland).

3.15. An applicant with an interim GRC can apply for a full GRC if their spouse or civil partner dies provided they do so within six months of the death and provided that they are not remarried or in a new civil partnership.^[15]

3.16. The Civil Partnership (Scotland) Bill, currently before the Scottish Parliament,^[16] will make civil partnership available to mixed sex couples. The Bill makes provision on civil partners who obtain gender recognition being able to stay in their relationship in much the same way as spouses are already able to. This reflects that, should the Bill be enacted, civil partnership – like marriage – will be open to same sex and mixed sex couples.

Statutory declarations

3.17. A statutory declaration is a formal statement made that something is true to the best knowledge of the person making the declaration. It is an existing offence to make a false statutory declaration. The intention is that statutory declarations under the revised GRA will be formal and will have to be made in front of someone who is authorised to administer an oath.^[17] In Scotland, a statutory declaration of this nature could be made in front of a Justice of the Peace^[18] or a Notary Public.^[19] It could not be made in front of a local authority councillor as they are not authorised to administer an oath.

What the Scottish Government is proposing to change

3.18. The Scottish Government is proposing to amend the process by which people can obtain legal gender recognition. The Scottish Government is not changing any rights, responsibilities or protections for women or for trans people.

Scottish Government’s rationale for proposing reform of the GRA

The adverse impact of the current system

3.19. It is absolutely right that there should be a system for gender recognition, and that whatever process is in place is a solemn and serious one that requires a lifelong declaration of intent. The Scottish Government is proposing to amend the system and keep a statutory declaration. The Scottish Government is aware that the current system has an adverse impact on people applying for gender recognition, due to the requirement for a medical diagnosis and the intrusion of having their life circumstances considered by the GRP. We think that trans people should not have to go through this intrusive process in order to be legally recognised in their lived gender. Amending the process will assist in improving the lives of trans people for whom it is important to have that legal recognition, by creating an equally serious but less onerous process.

3.20. The Scottish Government does not wish trans people to go through procedures which are demeaning, intrusive, distressing and stressful. That is, quite simply, not right for our citizens.

3.21. There are further reasons for changing the GRA. One is that, as shown by the explanation earlier on this Chapter, the current legislation in this area is complex and needs to be simplified.

3.22. The need for amending the process was highlighted in responses to the consultation we carried out in 2017. The independent analysis of the responses to that consultation^[20] found that 60% were in favour of amending the process of applying for a GRC. A summary of themes and issues raised follows.

General points from those who agreed with reform

3.23. The analysis shows that 60% were in favour of reform. In addition, around 1,950 respondents who agreed with reform provided additional comments about specific issues often reflecting lived experience.

3.24. The three issues most frequently cited were:

• Gender identity is a personal matter, with gender recognition sought by individuals who know their own mind and do not make such a choice without thought and commitment.
• The existing gender recognition process takes too long, is too difficult or too expensive and needs to be made easier so that it presents less of a barrier to accessing a GRC.

• The existing process is demeaning, intrusive, distressing or stressful for applicants.

3.25. Respondents sometimes related personal experiences of the difficulties they had encountered when applying for a GRC or suggested that, although they had lived in their acquired gender for many years, they had not applied for a certificate because of the costs, the intrusive nature of the process, or the difficulties in providing the evidence required.

3.26. Some respondents argued that the existing gender recognition process either contributes to ill health or leads to the stigmatising of trans people. With respect to health and well-being it was suggested that the delays and difficulties that individuals may experience in obtaining their GRA can lead to mental ill health, including both depression and suicidal feelings. Conversely, it was argued that simplification of the process may alleviate such symptoms. Similarly, while some respondents suggested that the existing process is stigmatising, discriminatory and can contribute to the harassment and abuse experienced by trans individuals, it was also argued that the reforms proposed could signal society’s acceptance of trans people and thus have a very positive effect.

Medical reports detailing a diagnosis of dysphoria

3.27. Some respondents to the consultation specifically provided additional comment on the issue of medical requirements of the current application process. It was argued that there should be no requirement to provide medical evidence, including because this contributes to medicalisation of something that is not an illness, or may put pressure on people to undergo medical procedures that they would not otherwise want at that time. Some said that being trans is not a mental illness and should not require a psychiatric assessment or diagnosis of gender dysphoria.

3.28. Practical problems in acquiring medical evidence were described, including very long waiting times for appointments at Gender Identity Clinics and some GPs who, respondents feel, do not understand, or are not sympathetic to, the issues involved.

3.29. Some respondents suggested that the reasons why individuals do or do not want to undergo medical transition should not be relevant to the recognition of their correct gender.

Living in the acquired gender for two years

3.30. Respondents to the consultation specifically provided additional comment on the issue of the current requirement to provide evidence of living in the acquired gender for two years prior to applying for a GRC. This was seen as very difficult for some or as risking trans people being exposed to prejudice or verbal or physical abuse. Reasons given included problems created when an individual’s personal documents are inconsistent, or do not match the gender presented, meaning that they are forced to reveal their status when they would not otherwise choose to do so.

Existing use of self-declaration

3.31. Additional commentary pointed out that self-declaration of gender is already the working practice within many organisations. Organisation respondents that provide support services for women who have been victims of rape, sexual abuse or domestic abuse noted that they operate on a self-identification basis and that this will not change, irrespective of any reform of the GRA. Another Women’s Group respondent stated that they were not aware of any women’s organisation within their network which required to see a birth certificate in order to access services or membership.

3.32. It was also noted that self-declaration of gender is already permitted when amending other documents such as a driving licence.

3.33. Trans men and women who have not yet obtained gender recognition may have transitioned socially with most of their identification documents, including Government issued ones, such as a passport and driving licence reflecting this, but will have an inconsistent birth certificate and legal status. As the law stands, trans people have to live in their acquired gender before applying to the GRP (unless they are applying under the overseas track).

Other reasons for reforming the GRA

3.34. As well as the impact of the current system for obtaining a GRC on individuals, there are other reasons for reforming the GRA.

Reclassification of gender dysphoria in ICD-11

3.35. Another reason for reforming the GRA is the reclassification of “gender dysphoria”.^[21] The World Health Organisation (WHO) publish an International Classification of Diseases (ICD). The 11^th revised version of the ICD (ICD-11) published in 2018 and approved in 2019 has redefined gender identity-related health. Gender identity disorders are no longer listed in the “Mental and behavioural disorders” chapter and are now in the new “Conditions related to sexual health” chapter.

3.36. The WHO have done this to reflect evidence that trans-related and gender diverse identities are not conditions of mental ill health, and classifying them as such can cause distress. The WHO aim to ensure transgender people’s access to gender-affirming health care by continuing to include gender incongruence in the ICD.

3.37. The Scottish Government does not consider that this change by itself means that the need for a medical diagnosis when obtaining legal gender recognition has to be removed from the GRA. However, it does point to the need for the current definition of “gender dysphoria” at section 25 of the GRA^[22] to be revised. The draft Bill at Annex C does, of course, propose a new system for obtaining legal gender recognition and repeals the definition in the current GRA of “gender dysphoria”.

Developments outwith Scotland since the GRA – general

3.38. A further reason for change is there have also been a number of developments outwith Scotland since the GRA was enacted such as:

• the non-binding Yogyakarta Principles (“the Principles”);
• a resolution of the Parliamentary Assembly of the Council of Europe; and
• new arrangements for obtaining gender recognition that have been adopted in other countries since 2012.

The Yogyakarta Principles

3.39. In 2006, the Principles were agreed by a group of human rights law academics, representatives of non-governmental organisations and others. The Principles set out existing international human rights law and principles, as the authors believe they should be applied to the treatment of lesbian, gay, bisexual and transgender people.^[23] Principle 3 indicates that countries should:

“take all necessary … measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex including birth certificates^[24] … reflect the person’s profound self-defined gender identity” and

“ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned”.

Council of Europe

3.40. In 2015, Resolution 2048 of the Parliamentary Assembly of the Council of Europe^[25] (Resolution 2048) expressed concerns that requiring someone seeking legal recognition of their acquired gender to have been medically treated or diagnosed might be a breach of their right to respect for their private life under Article 8 of the ECHR. Resolution 2048 calls on all Member States to:

“develop quick, transparent and accessible procedures, based on self determination, for changing the name and registered sex of transgender people on birth certificates, identity cards … and other similar documents”.

Women and Equalities Select Committee of the House of Commons

3.41. In January 2016 the Westminster Women and Equalities Select Committee of the House of Commons said that the current process for obtaining legal gender recognition:

“runs contrary to the dignity and personal autonomy of applicants”.^[26]

Systems for obtaining legal gender recognition in other countries

3.42. The gender recognition processes in use in 16 other countries and territories is summarised in Annex E. There are a variety of approaches taken across Europe and across the world.

3.43. In recent years, there have been moves towards systems which are similar to the system the Scottish Government is proposing to introduce for Scotland. For example, the Republic of Ireland has a system based around statutory declarations.^[27] The Scottish Government is not aware of problems arising in Ireland as a result of the introduction of a system for obtaining gender recognition based around statutory declarations.

Conclusion

3.44. As outlined in this Chapter, the Scottish Government considers there are strong reasons for reforming the GRA:

• We need to move away from procedures which are seen as demeaning, intrusive, distressing and stressful.
• We need to take account of international developments.
• We need to simplify and clarify the current legislation.