Review of the Gender Recognition Act 2004: consultation

Annex H – A Self-Declaration System For Legal Gender Recognition In Scotland

The application process

1.The process set out below is intended to apply to applicants aged 16 and over.

2.A person seeking recognition in their acquired gender would complete and submit an application consisting of:

• information about the applicant and their contact details;
• a statutory declaration by the applicant of statements of fact before a person authorised to administer an oath;
• confirmation from the person witnessing the statutory declaration of evidence used to verify the applicant’s identity; and
• if spousal consent is required under the new system (see also Part 5 of the consultation), details of the marriage and a statutory declaration by the applicant’s spouse.

3.The content of the statutory declaration by the applicant would include statements of fact, such as:

• the applicant’s age;
• their personal capacity to make the application;
• that the decision is of their own free will;
• the gender in which they wished to be legally recognised; and
• their intention to remain in that gender for the rest of their life.

4.The application would be submitted by post to be processed by a team based within either the Scottish Government or National Records of Scotland. The possibility of electronic submission of applications in a secure manner should not be excluded.

Examination of applications

5.On receiving a correctly completed application, the administrative body dealing with such applications would be under a duty to issue a GRC.

6.Only incomplete applications, or those which contain a material error, would be refused. Examples of applications which would be refused include:

• where the applicant has failed to sign the application form;
• where the applicant has not included a completed statutory declaration; or
• where the witness to a statutory declaration is not appropriately authorised to administer oaths in Scotland. ^[96]

7.Refused applications would be returned to the applicant with information confirming why the application had been refused.

8.No additional evidence could be requested.

General effect of recognition

9.The Scottish Government’s intention is that the general effect of a GRC would be the same as it is now under section 9 of the 2004 Act. Scottish applicants would have legal recognition of their acquired gender from the date of the issue of the certificate.

Updating the Register of Births and other registers

10.Following the issue of a Scottish GRC to an applicant whose birth or adoption was registered in Scotland, the administrative body processing the application would advise the Registrar General for Scotland (the Registrar General). The Registrar General would be required to issue a new birth certificate to the applicant to reflect their legally recognised gender, as is currently the case.

11.It is assumed for the purpose of this Annex that the existing Gender Recognition Register held by the Registrar General would continue to be used in the proposed self-declaration system.

12 When an applicant’s birth or adoption was registered in Scotland, the Registrar General would be required to enter prescribed particulars in an entry in the Gender Recognition Register as they do now. ^[97] This entry enables the Registrar General to issue a new birth certificate showing the successful applicant in their new legal sex. As is the case now, the new birth certificate would not disclose that it had been issued following recognition of an acquired gender. For marriages solemnised in Scotland, the successful applicant would also be able to obtain an updated marriage certificate on request.

13.Currently, National Records of Scotland staff provide details to be disclosed on the updated birth certificate to a successful applicant. They will also provide advice, if necessary, regarding obtaining an updated marriage certificate and cancelling any previously recorded change of name which might inadvertently disclose the applicant’s transgender status. This process should continue under a new system.

Correction, appeals and revocation

14.Provision for the correction of administrative errors contained in a Scottish GRC already issued will be required.

15. The Scottish Government considers that adopting a self-declaration process for legal gender recognition would reduce the potential for applications to be refused. However, an applicant would be able to request that the authority review a decision to refuse their application. If the applicant remained dissatisfied after the review process was completed, an appeal could be made to the sheriff court.

16. The 2004 Act provides for a decision to issue a GRC to be quashed where a court determines, following an application by

• an applicant’s spouse; or
• or their civil partner; or
• by the Secretary of State,

that the application for recognition has been secured by fraud. ^[98]

17.It appears to the Scottish Government that, if spousal consent is no longer required under the proposed self-declaration system of legal gender recognition, then a spouse would not need to be able to seek revocation of a GRC. Similarly, there may be no need for a civil partner to be able to seek revocation of a GRC.

18.However, the Scottish Government considers that it would be appropriate to retain a power for the Scottish Ministers to apply to a court to have a Scottish GRC quashed on the basis that it has been secured by fraud.

Impact of new system for other matters

19.The table in Annex I summarises the provisions of the 2004 Act and the Scottish Government’s view on whether the legal position in Scotland should continue under the proposed self-declaration system of legal gender recognition. It also highlights those areas of law which are reserved and so do not fall within the Scottish Parliament’s legislative competence.