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Publication - Consultation paper

Review of the Gender Recognition Act 2004: consultation

Published
9 November 2017
Directorate
Justice Directorate
Topic
Communities and third sector
ISBN
9781788513982

This consultation seeks views on proposals to reform the Gender Recognition Act 2004.

View supporting documents Supporting documents

Annex I – Provisions Of The 2004 Act

2004 Act Effect Retain/amend Devolved or reserved Comments
s.1 (and Schedule 1) Sets out who may apply and that the Gender Recognition Panel determines applications. Amendment required under proposed self-declaration system. Devolved See Parts 2, 3 and 4.
s.2 Sets out how applications are determined. Significant amendment required under proposed self-declaration system. Devolved See Annex H.
s.3 to 3F Makes provisions for evidence required with applications. Significant amendment required under proposed self-declaration system. For example, to remove all medical requirements and requirement to have lived in acquired gender prior to application. Devolved See Parts 2 to 6.
s.4 to 5D (1) GRP to issue a full GRC in some cases or an interim GRC in others.

(2) Form of GRC can be specified in subordinate legislation.

(3) Provision for Gender Recognition Panel to issue full GRCs to people with interim GRCs in certain circumstances.

(4) In Scotland, a married person with interim GRC can apply to sheriff within 6 months of issue for a full GRC (s.4E).		 Significant amendment required under proposed system, (including if interim GRC not needed under new arrangements). Devolved See Part 5 and Annex H.
s.6 Application may be made to correct errors in a GRC or an error in the type of GRC issued. Similar provision required with minimal amendment. Devolved See Annex H.
s.7 An application must be made in form and manner specified. Significant amendments in the form and manner of application will be necessary under proposed self-declaration system. Devolved See Annex H.
s.8 Provision for appeal against rejection of application, applications to a court to quash a decision to grant an application if allege grant of GRC secured by fraud. Similar provisions required. Devolved See Annex H.
s.9 Effect of full GRC is that person’s sex is aligned with their acquired gender. This does not affect things done or events occurring before then but their acquired gender does operate for the interpretation of legislation, instruments and other documents made before and after the issue of the GRC. Retain effect. Devolved
s.10 When Gender Recognition Panel issues full GRC to person with an entry in UK birth register, they must send a copy to the appropriate Registrar General. See below for further information about Schedule 3 which s.10 also gives effect to. Retain effect. Devolved See Part 2 and Annex H.
s.11 (and Schedule 4) To make consequential provision to ensure gender change does not alter intended operation of prohibited degrees of marriage. Retain effect. Devolved See Part 5.
s.11A- 11D Provisions ensure the continuity of (1) marriage on recognition of acquired gender; or (2) of a civil partnership where both parties recognised in their acquired gender. Retain effect. Amendment may be required if Scottish civil partnership can continue if one party issued with GRC. Devolved See Part 5.
s.12 Parenthood – responsibilities and rights not lost on recognition of acquired gender. Retain effect. Devolved See Annex H
s.13 (and Schedule 5) Social security benefits and state pension paid based on recipient’s acquired gender. Accordingly they may cease to be entitled following gender recognition to certain social security benefits or pension which are gender specific or if a person of the same gender and age would not be so entitled. Retain effect. Reserved (though some benefits are devolved). State pension age will equalise for men and women in late 2018. Few people remain eligible for gender-specific benefits.
s.14 (and Schedule 6) Repealed and replaced for Scotland, England and Wales by Equality Act 2010. (Provisions concerned operation of gender recognition and sex discrimination legislation.) Retain effect. Equal opportunities generally reserved. See Annex G.
s.15 Succession – recognition does not affect who inherits under a will made before 4 April 2005. Retain effect. Devolved
s.16 Peerages – descent of any peerage, dignity or title of honour will take place as if a person recognised in the acquired gender were still of the sex assigned at birth. Retain effect. Reserved
s.17 Protection for trustees and other representatives unaware of person having been recognised in their acquired gender where this affected true entitlements. Retain effect. Devolved
s.18 A person who will not inherit as a result of gender recognition may apply for a court order against the person who benefits. Retain effect. Devolved
s.19 Repealed and replaced for Scotland (and England and Wales) by Equality Act 2010. (Provision related to the regulation of participation in gender affected sports.) Retain effect. Equal opportunities generally reserved. See Annex G.
s.20 Gender specific offences – recognition of an acquired gender does not affect whether the person recognised can be held to have committed gender-specific offences. Retain effect. Devolved Most sexual offences are now gender-neutral, but some sex-specific offences may remain.
s.21 Recognition of acquired gender outwith the UK does not result in automatic UK recognition unless granted in an EU or EEA country. Amend effect. Devolved (international relations are reserved). See Part 6.
s.22 Makes it an offence for an official to disclose protected information, for example that a person’s acquired gender has been recognized. There are some exceptions. Retain effect, but changes may be required depending on outcome of this consultation. Data protection reserved, but Scottish Ministers currently can exercise powers to add exceptions that are within legislative competence. See Part 6.
s.23 Secretary of State or the Scottish Ministers (if provision within legislative competence of Scottish Parliament) may make order modifying operation of any Act or subordinate legislation in relation to people who have been recognised in their acquired gender under the 2004 Act. Retain effect for legislation within devolved competence. -
s.24 How orders may be made by those with powers under the 2004 Act. Similar provision required if power to make secondary legislation taken in any Bill to implement the proposed self-declaration system. Devolved
s.24 to s.26, How secondary legislation may be made.

Provides for interpretation and commencement of 2004 Act.		 Similar provisions required under proposed self-declaration system. Devolved
s.27 Different process for applications made within two years of commencement.

No longer possible to apply though similar to the alternative track.		 Not required under proposed self-declaration system. Devolved See Annex C for the alternative track.
s.28 Extent of provisions of the Act to the different constituent parts of the UK. Proposed self-declaration process for legal gender recognition would affect law in Scotland only. See Part 7 for section 104 Orders.
Schedule 1 (1) Constitution of Gender Recognition Panel;

(2) appointment of President and Deputy President;

(3) Panel Membership;

(4) Panel procedures;

(5) Staff and facilities;

and

(6) related matters.		 Provisions not required.

Proposed self-declaration system would not involve a Gender Recognition Panel.		 Devolved See Annex H.
Schedule 2 Issuing of interim GRC when applicant married.

Only Part 2 applies to Scottish marriages.		 Effect of Part 2 will require amendment if interim GRC no longer a ground of divorce. Devolved See Part 5.
Schedule 3 Part 2 applies to Scotland.

Provides for the Gender Recognition Register, entries in that register and correction of those entries.

Also provides for secondary legislation to allow marriages and civil partnerships to be registered after gender recognition.		 Retain effect.

Amendments may be required to reflect decisions made in relation to recognition of mixed sex civil partnership for a limited purpose.		 Devolved See Part 5.
Schedule 4 Part 2 applies to Scotland. See s.11 above for further information Retain effect. Devolved
Schedule 5 See s.13 above for further information.

Whether and how entitlements to pensions and benefits are affected by person recognised in their acquired gender.		 Retain effect. Reserved (some benefits are devolved).
Schedule 6 Provisions repealed and replaced for Scotland, England and Wales by Equality Act 2010.

(Provisions concerned the operation of gender recognition and sex discrimination legislation.)		 Retain effect. Equal opportunities are generally reserved. See Annex G.

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