Review of the Gender Recognition Act 2004: consultation

Annex D – Scottish Government’s Understanding Of The Position In Other Countries

1. The table below summarises the key features of the legal gender recognition arrangements in other countries and territories. Further details are provided in Parts 2-4 of this Annex.

Country	Self-declaration model	Assessment model- administrative system-	Assessment model- Court-based process	Treatment model- treatment or surgery required
Argentina	Yes
Australian Capital Territory		Yes
Austria				Yes
Belgium	Yes
Canada – British Columbia		Yes
Colombia	Yes
Czech Republic				Yes
Denmark	Yes
Finland				Yes
France			Yes
Iceland				Yes
Ireland	Yes
Malta	Yes
New Zealand			Yes
Norway	Yes
Spain				Yes

2.Countries with self-declaration systems

Argentina

2.1.The law in Argentina was adopted in 2012 and provides that a person wishing to change their recorded sex aged 18 or over must make a request to the National Register of Persons stating that they are covered by this law and seeking an amended birth certificate and a new identity card.

2.2.Where the trans person is under 18, the request is made by their legal representatives and with the trans person’s agreement, taking into account their evolving capacities and best interests. If the person’s legal representatives do not wish to make the application or it is otherwise impossible to obtain approval, a court process can be used.

2.3.The Scottish Government understands that recognition of non-binary people is given under this process.

Belgium

2.4.Belgium adopted a new law in May 2017 which removed the requirement to undergo sterilisation. Applicants aged 18 and over must make a declaration stating that they are convinced that the sex shown in their act of birth does not correspond with their gender identity. Applicants aged 16 and 17 must be supported by their parent or legal representative and have consulted a psychiatrist.

2.5.The applicant then receives an information pack and the King’s Prosecutor is advised of the application and has a period of three months during which they may refuse the application in exceptional cases. At the end of this three month period and before six months have passed in total, the applicant must reconfirm their application before the process is completed.

Colombia

2.6.The law in Colombia was adopted in 2015 and provides that a person is permitted to correct the information about their sex in the Civil Registry of Birth by filing a petition with a notary public.

2.7.The petition must be accompanied by a sworn declaration indicating their willingness for the Civil Registry of Birth to be corrected and containing information about the applicant’s understanding of their sexual identity.

2.8.The notary is required to issue a public deed correcting the entry within 5 business days of receipt of petition and necessary documents.

2.9.Correction of the Civil Registry of Birth may consist of either male to female or female to male.

2.10.The sex shown for a person in the Civil Registry of Birth may be corrected up to twice and requests must be 10 years apart.

Denmark

2.11.From 1 September 2014, Danish residents aged 18 or over may apply to change their personal number in the Central Persons Register by application to the Minister of the Interior and Social Security stating they belong to the other sex and then completing a six-month “reflection” period. If a false statement is made this is punishable under the Danish penal code.

2.12.An average of 289 people per year have changed their legal sex using this process.

2.13.The Scottish Government understands that a Danish citizen can apply for their passport to show their sex as ‘X’ for “undetermined, unspecified, intersex”, but that the Central Persons’ Register only allows the binary options of male and female.

Republic of Ireland

2.14.Under the Irish legislation, which came into force in 2015, ^[84] a person who was born, or is ordinarily resident in the Republic of Ireland, and is aged 18 or over, may apply to the Department of Social Protection to change their legal sex from male to female or vice versa by submitting an application form incorporating a statutory declaration. The statutory declaration states that they intend to live in their acquired gender for the remainder of their life. It is an offence for a person knowingly or recklessly to provide false or misleading information in a material respect in an application.

2.15.Applications by 16 and 17 year olds must be accompanied by a court order permitting their application to proceed. The court order is granted if there is parental consent and medical evidence about the young person’s capacity and transition to their acquired gender.

2.16.A person who has obtained recognition of their acquired gender in another jurisdiction can apply for recognition in the Republic of Ireland. In 2016, the Department of Social Protection issued GRCs to 109 people.

2.17.If an applicant later changes their mind, they must request revocation of the GRC. The Minister for Social Protection decides whether to grant this request.

Malta

2.18.The law in Malta ^[85] was adopted in 2015. It provides that all Maltese citizens may request the Director for Public Registry to change their “recorded gender and first name” by way of a declaratory public deed drawn up by a notary public. This deed must contain “a clear, unequivocal and informed declaration by the applicant that one’s gender identity does not correspond to the assigned sex” and a specification of the gender particulars.

2.19.Where a person is under 16, persons exercising parental authority may file an application in court, with the court required to ensure the best interests of the child are taken into account and to give due weight to the views of the child, having regard to the child’s age and maturity.

2.20.Amendments made to an adult applicant’s Act of Birth as a result of legal recognition can only be modified again by a court order.

2.21.Malta recognises non-binary gender identities.

Norway

2.22. The law in Norway provides that a Norwegian resident aged 16 and over may apply for a change in the gender in which they are registered in the National Register to the Tax Office. If they are aged between 6 and 16 they must apply along with the person or persons who have parental responsibility for them.

2.23.If in respect of a child between 6 and 16 only one parent consents, the application must be made then to the County Governor of Oslo and Akershus and will be granted if this is best for the child.

2.24.In the first nine months of operation, 706 people had their acquired gender recognised.

2.25.These arrangements do not include recognition of non-binary people.

3.Countries using an administrative assessment model – third party evidence of gender identity is required

Australian Capital Territory

3.1.A person seeking to change their sex on a birth certificate issued in the Australian Capital Territory can apply to Access Canberra enclosing an application form and a statement by a doctor. ^[86] They can apply to be registered as Female, Male, Unspecified, Indeterminate or Intersex.

3.2.The statement from the doctor or psychologist requires to confirm either that that applicant has had ‘appropriate clinical treatment’ for the alteration of their sex or that the applicant is an intersex person.

Canadian province of British Colombia

3.3.A person seeking to change their sex on a birth certificate issued in British Columbia may apply to change this from female to male or vice versa by applying to the British Columbia Vital Statistics Agency. ^[87] The application form states that they “have assumed, identify with and intend to maintain the gender identity that corresponds with the requested change”. In addition, they must provide a statement in the prescribed form from a physician or psychologist confirming that the applicant’s gender identity does not align with the “Sex” designation on the identification issued to the applicant by the provincial government.

3.4.A person under 18 may also apply provided they have the consent of all their parents or legal guardians, and are able to provide a required statement from a physician or psychologist.

3.5. A similar arrangement is also used in the Canadian province of Manitoba. ^[88]

4.Countries using a court based assessment model

France

4.1.The law in France was altered with effect from 1 January 2017. Any adult or emancipated minor can apply to the court to have their gender corrected in the civil registry, declaring their free and informed consent to the change of documents with supporting evidence. They require to demonstrate sufficient facts in support of this such as: that they appear publicly to belong to the affirmed sex; that they are known in that sex to their family, friends and colleagues; or that they have changed their forename to one of the affirmed sex.

New Zealand

4.2.People aged 18 and over (or a person under 18 who is or has been married, in a civil union or a de facto relationship) ^[89] and whose birth was registered in New Zealand ^[90] may apply. Applications are made to the Family Court for a declaration that the birth certificate issued to them should contain their nominated sex and not the sex assigned to them in the birth register. ^[91] Typically, there must be expert medical evidence that the applicant:

• has assumed or has always had the gender identity of a person of the nominated sex;
• has undergone medical treatment usually regarded by medical experts as desirable to enable persons of the applicant’s genetic and physical conformation at birth to acquire a conformation that accords with the gender identity of a person with the nominated sex; and
• will as a result maintain a gender identity of a person of the nominated sex.

4.3. Each case is assessed taking into account the medical evidence and what is medically recommended for that person.

4.4.Although it is possible to record a person’s sex in the birth register as ‘indeterminate’ in New Zealand, it is not possible for a person whose sex was correctly recorded as male or female to change this to ‘indeterminate’, according to the guidance published by the New Zealand Department of Internal Affairs. ^[92]

4.5.A New Zealand passport can be issued showing the holder as M (male), F (female) or X (indeterminate/unspecified) provided an applicant provides a statutory declaration stating how long they have maintained their current sex or gender identity. Applicants under 18 must submit statutory declarations from a parent or legal guardian and a registered counsellor or medical professional. ^[93]

5.Countries using a treatment model where medical treatment or surgery is required

Czech Republic

5.1.The law in the Czech Republic ^[94] permits a person to change their legally recognised gender including a change in their personal identification number, provided they have had genital surgery and been sterilised.

Finland

5.2.A Finnish national, or person resident in Finland must: ^[95]

• submit a medical statement confirming that they have been sterilised or are otherwise infertile and that they feel they belong permanently to the opposite gender from their assigned gender; and
• evidence of the consent of their spouse or partner where they are married or in a recognised partnership.

Iceland

5.3.In 2012 Iceland adopted legislation permitting a person who has received a diagnosis and treatment from University Hospital Iceland to request confirmation from an expert committee that they belong to the opposite sex.

Spain

5.4. A Spanish national of 18 and over may request rectification of the information in the Civil Registry about their sex. Unless they have already undergone gender reassignment surgery, they must demonstrate through a medical report or reports that:

• they have been diagnosed with gender dysphoria; and
• they have, where age and health permit, undergone medical treatment for at least 2 years to alter their physical characteristics.