Review of the Gender Recognition Act 2004: consultation

Part 2.The Gender Recognition Act 2004

2.01. The 2004 Act is UK-wide legislation.

2.02.The process of applying for legal recognition of the gender with which a person identifies is a devolved matter that the Scottish Parliament can legislate for. There are some reserved areas impacting on gender recognition where responsibility is largely with Westminster.

2.03. The Scottish Parliament agreed in 2004, through a Sewel Motion ^[3] , that Westminster could legislate for Scotland, in respect of the provisions relating to devolved matters in the 2004 Act.

How gender recognition works under the 2004 Act

2.04. The 2004 Act permits a person aged 18 or over to seek legal recognition in their acquired gender. There are three routes or “tracks” under the 2004 Act by which a person aged 18 and over can seek legal recognition of their acquired gender: the standard, alternative and overseas tracks. The standard track is the one which is used most often. ^[4]

2.05.An applicant under the standard track must, in addition to completing and submitting an application form: ^[5]

• satisfy the Gender Recognition Panel that they have, or have had, gender dysphoria and produce two medical reports detailing this diagnosis;
• satisfy the Gender Recognition Panel that they have lived in the acquired gender throughout a period of two years ending with the date on which the application is made. The Gender Recognition Panel’s guidance indicates that evidence demonstrating this such as a passport, driving licence, pay slips, or utility bills, should accompany the application; and
• make a statutory declaration before a person authorised to take oaths that they have lived in their acquired gender throughout the period of two years ending with the date of the application and intend to live in their acquired gender until their death. ^[6]

2.06. Annex C contains more information about the 2004 Act including the alternative and overseas tracks.

2.07.Applications are considered by the Gender Recognition Panel. The panel has legal and medical members and is supported by an administrative team from HM Courts and Tribunals Service. If the Gender Recognition Panel are satisfied that the application meets the requirements of the 2004 Act then they will issue a full GRC. ^[7]

2.08.In terms of section 9(1) of the 2004 Act, when a person is issued with a full GRC the effect is that:

“the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

2.09.When a person is issued with a full GRC their legal sex changes.

2.10. If the applicant’s birth or adoption ^[8] was registered in Scotland, the Registrar General for Scotland, who is responsible for the Register of Births, is then advised that a full GRC has been issued to that person. The Registrar General must then make an entry in the Gender Recognition Register ( GRR), which was created by the 2004 Act. The GRR is not open to inspection by the public.

2.11. Once the entry in the GRR is complete, the Registrar General must then issue the successful applicant with a new birth certificate that reflects their new legal sex. Their new birth certificate does not disclose that the information is taken from the GRR and otherwise appears to be the same as an extract from the Register of Births.

2.12. If the successful applicant was married in Scotland, the Registrar General can also issue a new marriage certificate that reflects the change in the applicant’s legal sex. ^[9] Similarly, if both the parties in a Scottish civil partnership obtain legal recognition of their acquired gender at the same time, they can obtain a new civil partnership certificate reflecting updated information. ^[10]