Gender Recognition Reform (Scotland) Bill: consultation

Chapter 4: The Proposed New System For Obtaining Legal Gender Recognition

Introduction

4.01. In her statement to Parliament on 20 June 2019, the Cabinet Secretary for Social Security and Older People outlined the Scottish Government’s proposals for reforming the GRA.^[28]

4.02. In summary, the Scottish Government’s proposals are:

• The removal of current medical requirements when applicants are seeking legal gender recognition;
• The removal of the need to apply to the GRP. Instead, applicants would apply to the Registrar General for Scotland (“the Registrar General”) who already has a number of existing functions under the GRA;^[29]
• Applicants must either (a) have been born or adopted^[30] in Scotland or (b) be ordinarily resident in Scotland;
• Applicants must have lived in their acquired gender for a minimum of 3 months (rather than the current 2 years) before submitting an application for gender recognition;
• After an application has been accepted by the Registrar General, the applicant would have to confirm after a reflection period of 3 months that they wish to proceed;
• Applicants would have to confirm that they intend to live permanently in their acquired gender;
• Applicants would still be required to submit statutory declarations, made in front of a notary public or a justice of the peace; and
• It will be a criminal offence to make a false statutory declaration in relation to gender recognition and to make a false application for gender recognition.

4.03. The Cabinet Secretary also announced in her Parliamentary statement that the Scottish Government:

• does not intend to allow people under 16 to apply for legal gender recognition and would seek views on reducing the age from 18 to 16;
• intends to seek views on what support is needed for children and young people who are uncertain of their gender identity;
• would prepare guidance on supporting trans pupils in schools. The aim is to set out how to protect and promote the rights of trans pupils and other pupils in schools;
• would set up a working group on sex and gender in data, including consideration of disaggregation of data by male and female;^[31]
• would develop guidance to make sure that policy makers and service providers understand better how to ensure that the rights of women and trans people can be collectively realised; and
• does not intend at this stage to provide legal gender recognition to non-binary people and would establish a working group to consider possible changes to procedures and practice in relation to non-binary people and what we can learn from best practice internationally, in Scotland and from the rest of the UK.^[32]

The draft Bill

4.04. The draft Bill is at Annex C and detailed Explanatory Notes are at Annex D. Impact Assessments are also attached as annexes.

4.05. The draft Bill does not repeal the GRA for Scotland and replace it with a new Act. Instead, it amends the GRA to introduce the proposed new system for Scotland for obtaining legal gender recognition. The Scottish Government does not consider there is a need to repeal the GRA. What is changing is the way in which legal gender recognition is obtained: the rights and responsibilities are not changing.

4.06. Key provisions of the Bill are outlined in the table below:

Section in Bill	Provision
2	An applicant must be at least 16 (see question below) and either have been born in Scotland or adopted in Scotland[33] or be ordinarily resident here. Section 11 gives powers to the Registrar General to make regulations on applications.
3	Once the Registrar General has considered the application, the Registrar General cannot determine it until a 3 month reflection period has passed and the applicant has confirmed in writing that they wish to proceed. (This confirmation is known in the Bill as the “notice of confirmation”).
4	The Registrar General must grant the application if it includes a statutory declaration by the applicant that the applicant is at least 16; was born or adopted in Scotland[34] or is ordinarily resident here; has lived in their acquired gender for at least 3 months; and intends to live in their acquired gender permanently. Section 14 makes it a criminal offence to make a false statutory declaration in relation to gender recognition or a false application for gender recognition or a false notice of confirmation after the reflection period has expired.
5 to 7	Makes provision on statutory declarations by the applicant on whether they are married or in a civil partnership and on what type of GRC the Registrar General should issue. Where the applicant is single, the Registrar General should issue a full GRC. Where the applicant is married or in a civil partnership and both parties wish to stay in the relationship, the Registrar General should issue a full GRC. In other cases, the Registrar General should issue an interim GRC.
7	Also makes provision on the court issuing a full GRC where the court has granted a decree of divorce or dissolution on the grounds of the issue of an interim GRC and also makes provision on issuing a full GRC on application by a person with an interim GRC.
8	Provides recognition for GRCs issued in England and Wales or Northern Ireland and for gender recognition obtained overseas.
9	Provision on an applicant being able to review and appeal gender recognition decisions made by the Registrar General.
9	Makes provision on applications to the court to quash a GRC on the grounds that the application was fraudulent or the applicant lacked capacity.
10	Makes provision on correction of administrative errors in GRCs.
12	Makes provision on the Registrar General for Scotland sending a copy of a GRC issued in Scotland to other Registrar Generals in the UK, if this is necessary to update records held by other Registrar Generals.
13.	Makes provision on continuity of marriages or civil partnerships after gender recognition.

4.07. Obtaining legal gender recognition would remain a serious step. The Scottish Government considers that requiring people to live in their acquired gender for 3 months; to make statutory declarations; and to go through a period of reflection for 3 months is a balanced and proportionate way of replacing the current system with one that is more respectful of the rights of trans people. As the Cabinet Secretary said in her Parliamentary statement:

“Retaining the requirement for a statutory declaration, making it clear that a false declaration is a criminal offence and building in time for reflection will enshrine in law the seriousness of the process. No one should doubt that it is a significant undertaking, or that it will require the same level of commitment from the individual as the existing system does.”^[35]

Question 1. Do you have any comments on the proposal that applicants must live in their acquired gender for at least 3 months before applying for a GRC?

Yes
No

If yes, please outline these comments.

Question 2. Do you have any comments on the proposal that applicants must go through a period of reflection for at least 3 months before obtaining a GRC?

Yes
No

If yes, please outline these comments.

Reducing the minimum age for obtaining legal gender recognition to age 16

4.08. The current minimum age for applying for legal gender recognition is 18 (section 1 of the GRA refers).^[36] The Scottish Government considers that this should be reduced to 16.

4.09. There are a number of existing areas in Scotland where people obtain rights at 16. At age 16 you can:

• leave home without the consent of your parent or guardian;
• get a full-time job and pay National Insurance;
• enter into a legally binding contract;
• consent to surgical, medical or dental procedures and treatments;
• marry or register a civil partnership;
• consent to lawful sexual activity;
• apply for a UK passport on your own behalf;
• vote in elections to the Scottish Parliament and Scottish local authorities;
• get a skin piercing;
• record a change of name officially.

4.10. In recent years, there have been moves to provide more rights at an earlier age (eg voting in Scottish elections is now allowed at 16 rather than 18).

4.11. Reducing the minimum age for obtaining legal gender recognition to 16 would be in line with the school leaving age and with the minimum age for marrying or entering a civil partnership.

Question 3. Should the minimum age at which a person can apply for legal gender recognition be reduced from 18 to 16?

Yes
No

Don’t know

If you wish, please give reasons for your view.

Statutory declarations and the applicant understanding what the document means

4.12. Under our proposals, a statutory declaration would be made before a notary public (many solicitors in Scotland are notaries public) or a justice of the peace.^[37] Notaries public may charge for this service; justices of the peace currently do not.

4.13. One question which might arise is whether the person before the justice of the peace or the notary public understands what the document means. In relation to notaries public, there is guidance issued by the Law Society of Scotland on this type of issue generally.^[38]

4.14. A justice of the peace is a member of the judiciary^[39] and could be expected to assess capacity in the same way as they would in the courtroom.

As in court, justices of the peace are always accompanied by a Legal Advisor when hearing statutory declarations.

4.15. As judicial office holders, justices of the peace receive training at the Judicial Institute for Scotland.^[40] This training includes dealing with any vulnerable people appearing before them. Guidance is also offered in the Equal Treatment Bench Book^[41] on dealing with persons with disabilities who appear before them. The National Curriculum for justices of the peace is also relevant.^[42]

4.16. It will remain a criminal offence for anyone to lie or be fraudulent in order to obtain a GRC. As outlined in section 14 of the draft Bill, a person who commits any such offence is liable on summary conviction to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (currently £10,000) (or both) and on conviction on indictment to imprisonment for a term not exceeding 2 years or an unlimited fine (or both).

Fees

4.17. The Bill makes provision for the Registrar General to charge fees for applications.

4.18. Currently, the fee for making an application to the GRP is £140. This can be reduced if the applicant is on certain benefits or on a low income.^[43] The level of fee charged by the GRP is, under section 7(2) of the current GRA, laid down by the UK Secretary of State^[44] rather than by the Scottish Ministers. Section 7 of the GRA is repealed by a provision in paragraph 2 of the schedule of the draft Bill.

4.19. The Registrar General and the Scottish Ministers have not yet decided what fee, if any, should be applied to applications to the Registrar General for gender recognition. There would be a consultation on the level of any fee if the Bill should be enacted by Parliament. Any fee would be based on the usual principle of recovery of the cost of providing the service (the set-up costs, such as initial staff recruitment and changes to IT, would be met by Government and not recovered through fees). It is likely that any fee would be considerably lower than £140, as the new proposed system does not require there to be a tribunal (the current GRP is a UK Tribunal).

4.20. The Fairer Scotland Duty Assessment attached to this consultation discusses these issues.

Conclusion

4.21. Consultees may have other comments on the draft Bill.

Question 4. Do you have any other comments on the provisions of the draft Bill?

Yes
No

If yes, please outline these comments.