Review of the Gender Recognition Act 2004: consultation analysis

3. Age of applicants

16 and 17-year olds

3.1. The minimum age at which a person may make an application under the 2004 Act is currently 18. The consultation paper notes that the Scottish Government considers that people aged 16 or older should be able to apply for legal recognition of their acquired gender using the proposed self-declaration process.

3.2. The consultation paper goes on to note that the proposed change would also be consistent with the age at which young people can exercise other rights under the law in Scotland. 16 and 17-year olds are able to make a number of important life decisions without parental involvement or consent. These include: getting married or entering a civil partnership; recording a change of name; and voting in Scottish elections.

Question 5 - The Scottish Government proposes that people aged 16 and 17 should be able to apply for and obtain legal recognition of their acquired gender. Do you agree or disagree?

Chart 5: Question 5

3.3. A majority of respondents, 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. Of the remaining respondents, 37% disagreed and 2% did not know. Those resident in Scotland were more likely to agree than all respondents, as were those from the rest of the world.

3.4. Around 4,010 respondents went on to make a further comment at Question 5.

Comments made by those who agreed

3.5. Around 1,360 respondents who had agreed at Question 5 went on to make a comment.

3.6. The most frequently made of these by some margin, raised by around 4 in 10 respondents, was that the proposal is in line with other age-related rights and legal provisions in Scotland. This issue was more likely to have been highlighted by those resident in Scotland than those living elsewhere.

3.7. Some noted that, to all intents and purposes, 16 and 17-year olds are now recognised as having full adult rights and responsibilities in Scotland. In addition to the rights referenced in the consultation paper, respondents also referred to other ways in which 16 and 17-year olds can exercise their autonomy, for example by: leaving home; entering further or higher education; being in employment and paying taxes; joining the armed forces^[5], or consenting to medical treatment.

3.8. More generally, it was suggested that 16 years old is a recognised minimum age for other areas of registration law. However, a Children and Young People’s respondent noted that while the proposal increases the opportunity for trans children to realise their rights, it is out of step with existing Scots law with regard to the recognition of capacity in children and young people. They noted that this more commonly presumes capacity from the age of 12 and provides children below that age the ability to exercise rights where they have capacity.

3.9. On a similar theme, around 1 in 5 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. It was also noted that the United Nations Convention on the Rights of the Child (UNCRC) requires that minors are not discriminated against, neither on grounds of age nor on grounds of their gender identity or sexuality, and that they are heard according to their maturity and evolving capacity in all matters that concern them.

3.10. Connected to this, around 1 in 8 respondents commented that children can be aware from an early age that they are trans. A smaller number of respondents noted that they themselves had been clear that they were trans by the age of 16. Others noted that they had worked with, or had friends or family members, who had also come to this realisation by age 16. A small number of Local Authority, H&SCP and NHS respondents noted that they are seeing younger and younger people declaring they wish to transition and that by lowering the age to 16 we empower young people into taking control and make decisions without the need for parental consent. They went on to note that this age is particularly relevant as it allows exam certificates to be issued in the correct name reducing anguish and preventing the administrative burden of having them reissued later.

3.11. Respondents also highlighted ways in which being able to obtain a GRC could help young people in moving into adulthood. Around 1 in 6 respondents 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. For example, a small number of respondents spoke of their own experiences and the negative impact not having their gender recognised had on them. A Union or Political Party respondent noted their belief that there will be serious mental health implications for young trans people if they are denied this right. They went on to say that young people will still identify as trans whether or not they can have their gender legally recognised, and that it is not ideal to leave recognition at the discretion of others, such as headteachers.

3.12. Also connected with helping trans young people in their transition into adulthood, a smaller number of respondents suggested that having their gender recognised will make it easier for young people to thrive in education or employment. It was suggested that the reduction in age would remove some of the barriers that trans, including non-binary, young people face as a result of inconsistent documentation when entering into employment or further education. The LGBT Group respondent highlighting this issue reported that trans, including non-binary, young people sometimes avoid applying for opportunities because they do not want to be outed by showing a birth certificate that does not reflect their identity. They also noted that applying for opportunities can have a negative impact on young people’s self-esteem and mental health when their documentation is questioned.

3.13. A small number of respondents commented more generally on documentation, including the importance for a trans young person of having their gender recognised across a full range of documents. Examples given included birth certificates, passports, school records and bank accounts. Respondents also noted the difficulties young people may face if their key documents do not all record a ‘matching’ gender and it was suggested that being denied the right to have their gender reflected in legal documents places them at risk of significant discrimination and violations of their privacy in education and employment.

3.14. Finally, smaller numbers of respondents suggested either that any age limit is arbitrary and that children should be able to receive legal recognition at any age. Options for under 16s are covered at the next question.

Comments made by those who disagreed

3.15. Around 2,540 respondents who disagreed went on to make a comment, with 7 in 10 commenting that 16 years old is too young to be able to apply for and obtain legal recognition of their acquired gender. A wide range of further issues were raised in support of this view, with many of them centring around 16 being too young to make a life-changing decision. For example, it was suggested that 16 and 17-year olds are often still going through puberty and, as discussed further below, they may not yet be clear about their gender identity or sexuality. It was also suggested that the brain does not mature fully until people are in their mid-twenties. Respondents also commented on life experience and suggested that a 16 or 17-year-old simply does not know what it would be like to live as an adult in the gender that is the same as their birth sex.

3.16. It was also noted that there are key services, supported by the legislative framework, 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 can access Paediatric and Child and Adolescent Mental Health Services
• When young people of 16 or 17 are held in custody they are considered to need enhanced levels of protection compared with adults.

3.17. 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. It was suggested that gay or lesbian young people may face bullying or discrimination because of their sexuality and that they may decide, or be encouraged to decide, they are trans instead. There were also concerns that young people may be coming under undue pressure or influence from social media. It was suggested that they are being exposed to messages hailing transition as the answer to the normal emotional confusion of going through the teenage years and that young girls may be especially vulnerable to these types of messages.

3.18. One perspective was that children and young people should be supported in exploring how they wish to express their gender identity without judgement and with appropriate access to mental health care and counselling services, but that legal recognition of gender should be something that they decide on as adults rather than when younger and easily swayed by the expectations and beliefs of their peers.

3.19. With specific reference to young women, there were concerns that the sexualised culture and the objectification of women could lead girls hitting puberty to want to opt out of being a woman. In particular, it was suggested that non-conforming teenage lesbians may be told or come to believe they must be male. There were also concerns that a high proportion of trans teens are autistic and that these young people may be particularly vulnerable to making changes to try to feel that they fit in. More generally, a Religious Body or Group respondent suggested that society places considerable pressure on young people and that being trans is far too often presented as an attractive alternative to the reality of their lives.

3.20. A smaller number of respondents suggested that children or young people who consider themselves to be trans may come to a different view as they mature. For example, a Women’s Group respondent summed up the views of others when referencing research which says that over 80% of children who think they are the opposite sex will come to terms with their natal sex by the end of adolescence and that a significant proportion of these children will be gay or lesbian.

3.21. Respondents also commented on the nature of the decision that young people would be making and it was suggested that making irrevocable decisions at a young age could lead to life-long problems. Around 1 in 9 respondents raised this issue, with further comments suggesting that there are many adults who come to regret their decision to change gender. In particular, it was suggested that 16 or 17-year olds may not yet be able to fully think through the longer-term implications of what they are doing, particularly in terms of the health impacts that any medical intervention may have.

3.22. There was specific reference to the long-term effects treatment may have on a young person’s fertility and the irrevocability of any physical changes that take place. There was also a concern that, particularly if someone comes to feel that they have made the wrong decision, there could be a very serious impact on a young person’s mental health. Given these perceived risks, it was suggested that young people should not be able to make any fundamental decisions, especially around undergoing trans-related medical treatment, until they are older.

3.23. In terms of when a young person may be equipped to make a decision to transition, and in particular a decision to undergo medical treatment, around 1 in 8 felt that 18 years is an appropriate age, while a smaller number felt that people should not be able to make such a profound and life-changing decision until their early to mid-20s.

3.24. Further comments included that the UNCRC defines children as those under the age of 18 years and accords them special protections. As above, it was also noted that legislation does not consider someone to be an adult with full legal responsibilities until they reach 18 and some suggested that allowing a young person to transition before age 18 would be to not exercise an appropriate duty of care, particularly where a young person may be considered to be vulnerable. On a similar theme, respondents noted a range of other areas in which we do consider 16 and 17-year olds need to be protected; examples given include purchasing alcohol or cigarettes or getting a tattoo.

3.25. Finally, smaller numbers of respondents commented on conditions which should be put in place if 16 or 17-year olds were to transition. Suggestions included that:

• A medical diagnosis should be required
• Parental consent should be required, or parents should be consulted at least.

Comments by those who did not know or did not answer

3.26. Around 120 respondents who did not know or did not answer the question went on to make a further comment. Themes largely reflected those raised by respondents who did not agree with the proposal that people aged 16 and 17 should be able to apply for and obtain legal recognition of their acquired gender.

People aged under 16

Question 6 - Which of the identified options for children under 16 do you most favour? Please select only one answer.

Option 1 – do nothing for children under 16

Option 2 – court process

Option 3 – parental application

Option 4 – minimum age of 12

Option 5 – applications by capable children

None of these options

Chart 6: Question 6

3.27. The most frequently chosen option, selected by 31% of those answering the question, was Option 1 – do nothing for children under 16. As set out with Table 6 at Annex 2, respondents from Scotland and the rest of the world were less likely to select Option 1 (28% and 24% respectively), while respondents from the rest of the UK were more likely to select it (39%).

3.28. Otherwise, both Option 3 and Option 5 were selected by 23% of those answering the question. Those resident in Scotland or the rest of the world were more likely to select Option 3 (27% and 29% respectively). Options 2, 4 and None of these were selected by smaller numbers of respondents (6%, 7% and 8% respectively).

3.29. Around 3,720 respondents went on to make a comment at Question 6. Based on their comments, a small number of these respondents may have interpreted the question as asking about options for 16 and 17-year olds.

3.30. Otherwise, in addition to explaining why they had selected their preferred option, some respondents set out their reasons for believing that under 16s should be able to take action about their gender. For example, a small group of Local Authority, H&SCP and NHS respondents commented that a small but increasing number of trans young people under 16 in Scotland are able to be open about their gender identity and live happy, healthy lives with the support of their parents, families and peers. They noted, however, that even those young people who have been living for many years as themselves, who are accepted by their families, and who go to school as the gender they identify, are unable to have their gender identity legally recognised.

3.31. Other comments included that the denial of a child’s identity is in contravention of the UNCRC, which otherwise Scotland proudly seeks to abide by.

3.32. Please note that the views of those who disagreed with allowing children under 16 to transition were primarily expressed at Option 1.

3.33. Further comments tended to focus on why that option had been selected. The main analysis below presents each option in numerical order rather than based on the proportion of respondents selecting that option.

Option 1 – do nothing for children under 16

3.34. Around 770 respondents who selected Option 1 went on to make a comment, with many of these comments reflecting the themes raised by those who had disagreed with people aged 16 and 17 being able to apply for and obtain legal recognition of their acquired gender.

3.35. For example, around 1 in 2 respondents suggested being aged 15 or under is simply too young to make such a fundamental decision about how to live your life. It was suggested that children simply do not have the necessary life experience or reasoning skills to come to such a profound decision. For this very reason, respondents sometimes noted that there are very few other areas in which society does not protect children of 15 years or under and does not recognise that they may be vulnerable. Around 1 in 6 thought that to do otherwise, in this case by allowing a decision to transition, was to neglect the duty of care society owes to children and could even be seen as tantamount to child abuse.

3.36. As at Question 5, it was suggested that teenagers will still be going through puberty and may not yet be clear about their gender identity or sexuality. For younger children, it was suggested that this is simply too young to be thinking about gender identity, let alone deciding to change gender. Around 1 in 7 suggested that even if a child does think they are trans, they are likely to come to a different conclusion as they mature. Specifically, it was suggested that the overwhelming majority of children who experience gender dysphoria will not carry those feelings into adulthood, and most of those children, if left alone, will turn out to be gay, lesbian or bi-sexual as adults.

3.37. In terms of supporting those children or young people who are experiencing gender dysphoria or body dysmorphia, around 1 in 10 respondents commented that it will be important to make sure children experiencing gender dysphoria or children who see themselves as trans receive the necessary support. This support was variously described as including counselling, mental health treatment and psychotherapy. However, some also noted that the pressure on these types of services is already considerable and that additional resources may be required.

3.38. On a similar theme, around 1 in 10 respondents stated that any treatment should not include physical interventions, including puberty blockers, hormone therapy or surgery. As at Question 5, respondents raised concerns about the longer-term implications for the child’s physical and mental health.

3.39. Others suggested that children seeing themselves as trans would be much less of an issue if society was not so clearly structured around the social construct of gender. It was suggested that one way to support children would be to reduce the number of gender markers applied to those under 16, as well as by teaching children that they do not need to conform to gender stereotypes. Around 1 in 10 respondents raised these issues.

3.40. Other comments made, in each case by smaller numbers of respondents, included that:

• Parents or guardians have a responsibility to do what is best for their child(ren), including preventing them from transitioning at such a young age
• Children could choose to live in their preferred gender, for example in terms of their choice of clothing, but should not being allowed to take any legal or medical steps towards transition
• More research is required, particularly into the longer-term impact medical treatment can have on under 16s
• The whole agenda to allow under 16s to transition is being driven by those with dubious vested interests and opinions, including because of homophobia, the opportunity to groom children or political correctness gone mad.

Option 2: Court process

3.41. Very much reflecting the proportion of respondents who chose Option 2, only around 180 respondents went on to comment. The most frequently given reason for selecting Option 2, given by around 1 in 5 respondents, was that the court process is a child-centred one which also allows all views to be considered. They felt that a court process would ensure that the best interests of the child were considered and that this option gives children a right to determine their gender identity balanced by protections from abuse or coercion offered by the legal system.

3.42. Around 1 in 10 respondents suggested the court process would offer very necessary protections for children whose parents do not support their wish to transition. Examples given included where parents do not support transition because of religious beliefs or cultural norms. Around 1 in 10 also suggested that the court process should apply only when Option 3 – parental application – cannot be pursued. Under these types of circumstances, it was suggested that the court is best placed to make a decision as to whether the child has competence to make such a decision.

3.43. In terms of the process itself, around 1 in 10 respondents felt that medical or gender specialists should be involved and should support the court in coming to its decision. Another suggestion, made by a Local Authority, H&SCP or NHS respondent was that there should be a specialist Court process similar to the Domestic Abuse Courts and that this would allow for a greater degree of knowledge and understanding of the complex issues involved.

Option 3: parental application

3.44. Around 380 respondents chose Option 3 and then went on to comment.

3.45. Very much reflecting a comment made at Option 2, the most frequently made point, raised by around 1 in 3, was to note that, in addition to parental application there needs to be a mechanism for children with parents who do not support their child’s transition. Some respondents also noted that children who are cared for by statutory services will also need a route to having their gender recognised.

3.46. A range of suggestions were made including allowing application by another responsible adult or the court process route as at Option 2. However, a Trans Group respondent suggested that such processes are necessarily adversarial, and that it would be unlikely that many young people would feel able to access this process. They preferred an approach whereby a designated person in a young person’s life would be able to confirm their capacity to make the decision. Similarly, around 1 in 5 respondents suggested that Option 5 – application by a capable child, should run in parallel with Option 3 and could be accessed by children whose decision was not supported by their parents.

3.47. The advantages of the parental application approach as being consistent with other arrangements was highlighted by around 1 in 5 respondents. Further comments included that requiring applicants under 16 to have parental consent would bring the process in line with many of the other administrative changes that trans young people can make at that age, such as changing their passport, medical records, and name. In this context, a small number of respondents highlighted the importance of being able to change a birth or death certificate.

3.48. It was also suggested that it would mean that the process for under 16s would mirror the process for adults if the Scottish Government’s proposals for moving to a self-declaratory system are adopted. Other comments about the advantages of the parental application route included that, particularly compared to some of the other options, it is relatively simple, straightforward and likely to be accessible and well understood.

3.49. Finally, a range of other issues were highlighted by smaller numbers of respondents. These included:

• Parents are likely to understand and act in their child’s best interest. It was also noted that they otherwise have legal responsibility for their child’s welfare
• It will be important to ensure that the child’s voice is heard and in particular to ensure that parents do not apply without their child’s consent
• Option 3 allows flexibility for younger children who might not be considered capable (as would be required under Option 5) and could help promote the confidence and empowerment of younger trans children.

Option 4: minimum age of 12

3.50. Reflecting the relatively small proportion of respondents who preferred this option, only around 150 respondents chose Option 4 and went on to comment.

3.51. In terms of Option 4 itself, the most frequent comment was that trans children may well be aware they are trans by the age of 12. Around 1 in 5 respondents raised this issue. In their further comments a small number of respondents spoke of their own experience and of being aware that they were trans at an early age. An individual respondent also referred to their dread of the onset of puberty and others also noted that age 12 would be around the age at which puberty starts.

3.52. It was suggested that this can be a watershed moment for a trans child and that allowing children to know that their body can match their mind would help with trans children’s survival rates. More general points made, in each case by smaller numbers of respondents, were that allowing transition at this age would help improve the wellbeing and mental health of the children and young people affected and that the age 12 minimum would allow these children to access puberty blockers when they were most needed.

3.53. Other comments about Option 4, also made by smaller numbers of respondents, included that:

• This option gives the greatest degree of autonomy and right to self-determination to trans people in Scotland
• The age limit should be reduced to 10 or 11 years to acknowledge the point at which a child may start puberty. An alternative view was that there should be no age limit for application.

3.54. Around 1 in 4 respondents commented on other options, either suggesting a combination of options they favoured or explaining why they disagreed with certain of the other options. Comments included that:

• There should also be a mechanism to allow trans children aged under 12 to change gender. Suggestions included parental application as at Option 3, or a court process as at Option 2
• More generally, Option 3 should run in parallel with Option 4, offering an alternative choice for those with parents who support their child’s decision
• Option 3 should run in parallel with Option 5 – application by a capable child.

3.55. A Children’s or Young People’s Group respondent commented that although Option 4 is their preferred option, a combination of the available options may offer the optimum safeguard for children and young people who would wish to apply for gender self-recognition, but who would require support in order to do so. They supported a process of self-recognition which is not based in the Court, or based on invasive medical assessment, but which provides some appropriate scrutiny and safeguards to the decision being made by the young person.

3.56. Finally, respondents sometimes commented on why they disagreed with the other options given at Question 6. Reasons given included that Option 1 neglects to acknowledge the distress having to live in the wrong gender may cause, particularly if a child is forced into the wrong group when school or other services are divided based on gender. Option 2, a court process, was seen as potentially very stressful and inappropriate for young people under the age of 16. As at the analysis on Option 3 - parental application, respondents expressed concerns about the parental application route for children or young people whose parents did not support their wish to transition.

Option 5: application by a capable child

3.57. Around 590 respondents chose Option 5 and went on to comment.

3.58. Most frequently, respondents commented that not all children can rely upon having supportive parents and that those who do not must have a mechanism for transitioning into the right gender. Around 1 in 6 raised this issue. Further comments included that this would allow children, including those whose parents are not supportive, to exercise self-determination and develop a sense of their own legitimate identity as a trans child. It was also suggested, by a smaller number of respondents, that irrespective of whether parents are supportive, Option 5 will help a trans young person develop a clear sense of identity which would help a trans young person going forward, particularly in terms of their wellbeing and mental health.

3.59. Others commented specially on the negative effect that withheld parental support can have on a trans child. It was suggested that trans children whose parents are unsupportive have extremely poor mental health compared to other children, including compared to trans children with supportive parents, and that this can lead to increased risk of suicide. It was also suggested that taking the pressure off parents also reduces the risk of relationship breakdown and custody disputes where there is a difference of opinion and that this in turn could help protect already vulnerable children from having to deal with additional stress factors.

3.60. Very much in line with a point raised by those who chose Option 3, around 1 in 10 of those choosing Option 5 thought it should be combined with parental application, thus allowing children with supportive parents to have the option of going down the parental application route. These respondents sometimes went on to suggest that for those for whom it is an option, parental application may be the most straightforward of the choices available.

3.61. A smaller number of respondents commented on what is meant by a capable child and there were concerns about how the assessment of capability would be made. In particular, it was also suggested that any assessment process must be sensitive and inclusive, for example by taking the needs of autistic children into account.

3.62. It was also suggested that ‘capable children’ is a well-established principle in Scotland and that the suggestion (as set out in the consultation paper) that a registered medical practitioner or a practicing solicitor should ‘test’ the child’s capacity is not reasonable. One perspective was that Gillick competence^[6] - which in this case would be that children under the age of 16 can consent to their own treatment if they are believed to have enough intelligence, competence and understanding to fully appreciate what is involved in their treatment – should apply. Others referred to the Fraser Guidelines^[7].

3.63. Other comments, in each case made by smaller numbers of respondents, included that:

• Children will require good quality information, support and advocacy services, which should include giving access to gender specialists.
• Consideration needs to be given to how a child who may not be assessed as being a capable child but who nevertheless has made a clear decision that they wish to change gender can be supported.

None of these

3.64. Around 820 respondents did not choose any of the available options and then went on to comment.

3.65. Respondents most frequently noted the importance of ensuring that children are fully supported in coming to any decision, be that to transition or not. Some also noted that this approach should help ensure that every child can have their voice heard. For example, a Children and Young People’s Group or Body respondent commented that whatever system is implemented, it should ensure that children and young people’s rights are fully embedded and remain at the centre of the process. In particular, they suggested that article 12 (right to be heard) and article 5 (evolving capacities) of the UNCRC should be paramount in considerations regarding children and young people.

3.66. In terms of how children and young people should be supported, counselling was sometimes suggested, as was therapeutic support and occasionally mental health-related treatment. Another perspective was that young girls who are considering transitioning should be supported to think their choice through in the context of living in a misogynistic society.

3.67. On a similar theme, around 1 in 8 respondents suggested that children would be best supported by society placing less or no emphasis on gender, and in particular the associated stereotyping of both children and adults. Some suggested that no gender markers should be applied to children, leaving them to make any choice, be that male, female or non-binary, at 16.

3.68. Other comments made, in each case by smaller numbers of respondents, sometimes reflected themes already covered under options. These included:

• Concerns about how any assessment of capacity would be carried out, including that it could discriminate against children who are less articulate or who have less articulate parents, who have poor mental health or who have special needs
• That gender specialists need to be included in any process
• Any approach must ensure that children whose parents do not support their change of gender are able to have their voice heard
• That some combination of Option 3 – parental application and Option 5 - application by a capable child, may be the best way forward.

3.69. Additional points raised, again by smaller numbers of respondents included that there should be no minimum age for changing gender or that a case-by-case approach should be taken as all children will be different.