Review of the Gender Recognition Act 2004: consultation

Part 3. Reforming the legal gender recognition system in Scotland

3.01. The Scottish Government knows that concerns have been expressed that the 2004 Act is now in need of reform.

3.02.For instance, the Westminster Women and Equalities Select Committee’s Report on Transgender Equality ^[11] published in 2016 said:

“While we recognise the importance of the Gender Recognition Act as pioneering legislation when it was passed, it is clear that the Act is now dated.”

3.03. The Committee’s Report recommended that:

“In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers”.

3.04.In particular, the Committee heard concerns expressed about the requirement on applicants using the standard or alternative tracks to produce medical evidence and evidence to satisfy the Gender Recognition Panel that they have lived in their acquired gender throughout the period required. ^[12]

3.05. Under the standard track, an applicant must include two medical reports with their application. ^[13] One report must be from a practitioner in the field of gender dysphoria who is either a registered medical practitioner or a registered psychologist. This report must include details of the applicant’s diagnosis of gender dysphoria. The second report must be provided by a registered medical practitioner who may, but need not, practise in the field of gender dysphoria.

3.06. Where an applicant has undergone or is undergoing treatment for the purpose of modifying their sexual characteristics or such treatment has been prescribed or planned for them, then one of the reports must also include details of that treatment. Guidance issued by the Gender Recognition Panel advises that if an applicant has not had surgery that the second report must explain why. ^[14]

3.07.Since the 2004 Act came into effect, there have been some significant international developments. An increased emphasis is now placed on the rights of transgender people to self-determination, privacy and dignity including the process by which they may obtain legal gender recognition.

3.08.In 2006, the non-binding Yogyakarta Principles were agreed by a wide-ranging group of human rights law experts, representatives of non-governmental organisations and others. They set out existing international human rights law and principles, as the authors believe they should be applied to the treatment of lesbian, gay, bisexual and transgender people. ^[15] Principle 3 asks countries to:

“take all necessary … measures to ensure that procedures exist whereby all State-issued identity papers which indicate a person’s gender/sex including birth certificates … reflect the person’s profound self-defined gender identity” and to

“ensure that such procedures are efficient, fair and non-discriminatory, and respect the dignity and privacy of the person concerned”.

3.09.In 2015, Resolution 2048 of the Parliamentary Assembly of the Council of Europe ^[16] (Resolution 2048) expressed concerns that requiring someone seeking legal recognition of their acquired gender to have been medically treated or diagnosed is a breach of their right to respect for their private life under Article 8 of the ECHR. The resolution calls on all Member States to:

“develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people on birth certificates, identity cards … and other similar documents”.

3.10.The view of the Scottish Government is that the 2004 Act requirements are unnecessarily intrusive and do not reflect the best practice now embodied in the Yogyakarta Principles and Resolution 2048.

3.11.We have identified the systems of legal gender recognition currently being used in 16 other countries or territories and compared those systems with the best practice principles embodied in Yogyakarta and Resolution 2048. Annex D contains further information about these systems.

3.12.There are three broad models in use: the treatment model, the assessment model, and the self-declaration model.

Treatment model

3.13.The ‘treatment model’ requires an applicant to have had hormone treatment or to have been sterilised or had surgery. The 2004 Act did not adopt this model; it is entirely at odds with best practice.

3.14.That the treatment model is also legally unacceptable has been affirmed in a recent decision of the European Court of Human Rights.

3.15.The court confirmed that a requirement to demonstrate the irreversible nature of a change of appearance (such as a requirement for sterilisation or surgery) was a breach of Article 8 of the European Convention of Human Rights. ^[17]

Assessment model

3.16.The arrangements under the 2004 Act are a variation on the ‘assessment model’. Under this model an applicant’s evidence about their gender identity is supported by third party evidence from a doctor or psychologist and is considered by either a court or an administrative body.

3.17.An example of a territory using an assessment model different from the 2004 Act arrangements – and where a medical diagnosis is not required – is the Canadian province of British Columbia. From 2014, British Columbia allowed a person whose birth was registered there to submit an application to the Vital Statistics Agency. The applicant can request a change in their birth certificate from female to male or male to female. The applicant must submit:

• an application form ^[18] containing a personal statement that they have assumed, identify with and intend to maintain the gender identity corresponding with their requested change; and
• a statement from a doctor or psychologist confirming the applicant’s gender identity.

3.18.Another example of a variation on the assessment model is the legal gender recognition process adopted in France in 2017. This is court based. The applicant must provide supporting evidence such as evidence that they appear publicly to belong to the sex in which they want to be legally recognised.

3.19.These assessment models may not require applicants to demonstrate a medical diagnosis, but access to legal recognition in British Columbia and France does require applicants to demonstrate that their gender identity conforms to the sex in which they wish to appear in their birth records.

Self-declaration model

3.20. Under the ‘self-declaration model’ the decision on whether an applicant can be recognised is entirely based on a declaration or statement of the applicant, sometimes with a period of reflection before full recognition is given and/or limitations on the number of occasions on which recognition can be obtained.

3.21.Countries that have adopted the self-declaration model include Norway, Denmark, Malta, Colombia, Argentina, and the Republic of Ireland.

3.22.The Republic of Ireland implemented its self-declaration system in 2015. A person whose birth or adoption was registered there, or who is ordinarily resident there, can have their preferred gender as a man or woman recognised and consequently change their legal sex. ^[19] They must submit an application form incorporating a statutory declaration ^[20] to the Department of Social Protection. The applicant must declare that they:

• have a settled and solemn intention of living in the preferred gender for the rest of their life;
• understand the consequences of the application; and
• make the application of their own free will.

3.23. In the Republic of Ireland, the applicant’s acquired gender is known as their “preferred gender”.

3.24.The statutory declaration must be witnessed a person authorised to take statutory declarations in the Republic of Ireland, such as a notary public or commissioner for oaths.

3.25.Denmark has a slight variation on this arrangement. A Danish transgender person may change their sex as recorded in the Danish Central Persons’ Register on the basis of their written statement of ‘a sense of belonging to the other sex’. This statement does not require any additional witnessing or other authentication. However, their new legal sex is not recognised until they have re-confirmed their application after a reflection period of six months.

Initial view of the Scottish Government

3.26. The Scottish Government considers that, subject to views expressed during this consultation, Scotland should adopt a self-declaration system for legal gender recognition. This would mean that applicants under a Scottish system would not have to demonstrate a diagnosis of gender dysphoria or that they had lived for a period in their acquired gender. This would align Scotland with the best international practice demonstrated in countries who have already successfully adopted self-declaration systems. We would be ensuring our compliance with Resolution 2048. And the arrangements would be less intrusive and onerous from the perspective of applicants.

3.27.In one aspect, we think that Scotland could build on the existing arrangements in the 2004 Act. All applications made under the 2004 Act must be accompanied by a statutory declaration, ^[21] witnessed by a person authorised to administer oaths and which includes a statement that the applicant intends to live in their acquired gender until death. In Scotland, oaths may be administered by a notary public or a justice of the peace. Paragraphs 3.30 to 3.34 discuss retaining the requirement for a statutory declaration under the proposed self-declaration system.

3.28.Streamlining the existing processes would also allow for applications to be considered by an administrative body, rather than by a tribunal such as the Gender Recognition Panel. The proposed self-declaration system could be administered by officials based in the Scottish Government or by officials at National Records of Scotland. The Registrar General for Scotland (the Registrar General) who heads National Records of Scotland is responsible for the Register of Births and the Gender Recognition Register under the 2004 Act.

3.29.Powers could be taken so that the Scottish Government or National Records of Scotland could charge fees for applications. There would be full and careful consultation before any such fees were introduced and on the level of any such fees.

Question 1

The initial view of Scottish Government is that applicants for legal gender recognition should no longer need to produce medical evidence or evidence that they have lived in their acquired gender for a defined period. The Scottish Government proposes to bring forward legislation to introduce a self-declaratory system for legal gender recognition instead.

Do you agree or disagree with this proposal?

Agree

Disagree

Don’t know

If you want, you can give reasons for your answer, or make comments.

Statutory declaration

3.30. Choosing to apply for legal recognition of your acquired gender is an important life decision. This needs to be reflected in any new self-declaration system for obtaining legal gender recognition.

3.31.A requirement to submit a statutory declaration would demonstrate that applicants intend to permanently live in their acquired gender. Therefore, the Scottish Government considers that applicants under the proposed system of legal gender recognition should have to provide a statutory declaration stating that they:

• are applying of their own free will;
• understand the consequences of obtaining legal gender recognition; and
• intend to live in their acquired gender until death.

3.32.The Scottish Government’s research into countries using self-declaration systems of legal gender recognition has not identified evidence of false or frivolous statements being made by applicants. However, under the proposed self-declaration system for legal gender recognition, if an applicant were to make a statement in a statutory declaration that is false in a material particular, this would be an offence. ^[22]

3.33.Another option would be a period of reflection, as used in Denmark and Belgium. Under this applicants would apply under a self-declaration system but would also be required to confirm their application again after a defined period of time. A full GRC would then be granted.

3.34.In Denmark, although a false statement is also a criminal offence, their reflection period is 6 months. In Belgium, the applicant must re-confirm their application after a minimum of three months. In both countries, an applicant is provided with information about the consequences of legal gender recognition during the reflection period. The purpose of a reflection period appears to be to reduce the risk that an applicant might change their mind after getting legal recognition in their acquired gender.

Question 2

Should applicants to the proposed gender recognition system in Scotland have to provide a statutory declaration confirming they know what they are doing and intend to live in their acquired gender until death?

Yes

No

Don’t know

If you want, you can give reasons for your answer or make comments.

Number of times a person can seek legal recognition

3.35.The 2004 Act does not restrict the number of times that a person can apply for legal recognition of their acquired gender.

3.36.Countries with self-declaration systems for legal gender recognition have different approaches to limiting the number of times that a person can seek to change their legal sex. Annex D contains further information about these arrangements.

3.37. Colombia permits a person to change their sex in the Civil Registry of Birth on a total of two occasions, and their requests to do so must be more than 10 years apart. In Malta, subsequent requests to amend the Civil Registry of Birth must be considered by a court, unless on the prior application the applicant was a minor.

3.38. It is possible to change your name in Scotland without changing the content of the Register of Births. However, if you wish your birth certificate to reflect your name change, you can only do so on a limited number of occasions. A person aged 16 or over is permitted to record a change of forename on one occasion and their surname on three occasions in the Register of Births. In respect of a surname change, five years must elapse after one change is recorded before another may be recorded. ^[23] There are different rules for people under 16.

3.39.Notwithstanding the proposed requirement for applicants to submit a statutory declaration, there may be concerns that applications might be submitted frivolously. Limiting the number of times that a person may apply for recognition of their acquired gender may reduce that risk.

Question 3

Should there be a limit on the number of times a person can get legal gender recognition?

Yes

No

Don’t know

If you want, you can give reasons for your answer or make comments.

Requirements in relation to an applicant’s place of birth or residence

3.40.In general, applicants need not have been born in the UK or be ordinarily resident in the UK to use the standard or overseas tracks. However, only people ordinarily resident in Scotland, England and Wales can use the alternative track to apply for legal recognition under the 2004 Act ^[24] . The Scottish Government’s intention is that under the proposed new self-declaration system, there would just be one way of applying, although, as discussed elsewhere in this consultation, distinct arrangements may be needed in respect of people under 16.

3.41.The question arises whether the proposed self-declaration system should:

• be open only to people whose birth or adoption was registered in Scotland and to people who are resident in Scotland; or
• be open to anybody in the world.

3.42.A key benefit of a full GRC for an applicant whose birth was registered in the United Kingdom is that they will be issued with a new birth certificate. If their birth was registered elsewhere, whether they can obtain a new birth certificate upon issue of a full GRC will depend on the laws of that country or territory.

3.43.Other countries restrict who may apply for recognition under their systems. In the Republic of Ireland, an applicant’s birth or adoption must have been registered there ^[25] or they must be ordinarily resident there. ^[26]

3.44.In Denmark, legal recognition is obtained by an applicant applying for an amendment to their sex shown in the Danish Central Person’s Register. Only people legally resident in Denmark can have an entry in the Central Person’s Register. ^[27]

3.45.One option for the proposed self-declaration system would be to limit access to people whose birth or adoption was registered here as well as to people who are resident in Scotland at the time of their application. However, this could exclude some people who might wish their acquired gender to be recognised here. An example might be someone who plans to move to Scotland.

3.46.At the moment, a person who has obtained legal gender recognition in another country or territory outwith the UK can apply to the UK Gender Recognition Panel for a UK GRC. The applicant must have obtained this legal gender recognition in an “approved country or territory”. This means a country or territory prescribed by order made by the Secretary of State after consulting the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland. ^[28] In 2016-2017, the Gender Recognition Panel received 25 applications submitted using the overseas track out of a total of 364 applications using all tracks. ^[29]

3.47. In future, the Scottish Government would intend that automatic recognition should be granted in Scotland where a person has been recognised in their acquired gender in another country or elsewhere in the UK. Paragraphs 6.29 and 6.30 consider this in more detail. On that basis, the Scottish Government’s initial view is that, subject to the views expressed during this consultation, applications to the Scottish self-declaration system should be restricted to those whose birth or adoption was registered in Scotland and to people who are resident here.

Question 4

If the Scottish Government takes forward legislation to adopt a self-declaration system for legal gender recognition, should this arrangement be open:

(A) only to people whose birth or adoption was registered in Scotland, or who are resident in Scotland?

or

(B) to everyone?

or

(C) Don’t know

If you want, you can give reasons for your answer or make comments.