Review of the Gender Recognition Act 2004: consultation

Annex J – Non-Binary People – Consequential Legal Impacts of Option 4

1.The following are examples of consequential changes required to existing devolved areas of law to take account of the recognition of a third legal sex under Option 4 discussed in Part 7.

Family law

2.Changes may be required to family law including in areas such as:

• parentage law;
• references which may be gender specific family terms such as “husband” and “wife”;
• references which assume that there are only two sexes; or
• PRRs and who obtains PRRs.

3. Annex F contains further information about PRRs and who may have them.

Marriage law

4.Marriage legislation currently reflects that marriage can be between a man and a woman or between two people of the same sex. This would require to be extended to include a third category of marriage, covering where one or both of the parties is non-binary. Provisions would be needed to reflect that some religious bodies and celebrants would not wish to marry non-binary people.

5.The Civil Partnership Act 2004 requires that a civil partnership must be between two people of the same sex. Provision might be required to ensure that this could be interpreted correctly where a civil partnership would involve two recognised non-binary people.

Registration law

6.The law on the birth register and other registers may need to be amended to reflect the potential legal recognition of non-binary people.

Crime- Gender-specific offences

7.Section 20 of the 2004 Act makes provision to ensure that a gender specific sexual offence can be committed or attempted by or against a person who has been issued with a full GRC. Although many criminal offences have been made gender neutral, there may be some remaining gender specific criminal offences and a similar provision will continue to be required. This will need to take account of an additional legal sex category.

Victims of crime

8.Certain victims of crime currently have the right to specify the gender of their police interviewer in terms of section 8 of the Victims and Witnesses (Scotland) Act 2014. This provision is subject to an exception where complying with the request would not be reasonably practicable. In due course the victim of a crime will also have the right to request a particular gender of forensic medical examiner under section 9 of the 2014 Act where the crime alleged is of a specified type. Amendment may be needed to ensure that we address any issues which may arise on recognition of a third legal sex.