Review of the Gender Recognition Act 2004: consultation

Part 4. Age of applicants

4.01. The minimum age at which a person may make an application at the moment under the 2004 Act is 18.

4.02.There is no consistent approach amongst countries with self-declaration systems of legal gender recognition in relation to people under 18.

4.03. When considering the options in this area, the Scottish Government has had regard to the United Nations Convention on the Rights of the Child ( UNCRC). ^[30] We have included a partial Child Rights and Wellbeing Impact Assessment ( CRWIA) at Annex M.

16 and 17 year olds

4.04. The Scottish Government considers that people aged 16 or older should be able to apply for legal recognition of their acquired gender using the proposed self-declaration process.

4.05. There is clear evidence that people aged 16 do live full time in their acquired gender and want this to be legally recognised. For example, the Women and Equalities Select Committee heard evidence from LGBT Youth Scotland to this effect. In the Republic of Ireland, 8 people aged 16 and 17 have received a GRC ^[31] after obtaining a court order permitting them to apply under their self-declaration system. The court in the Republic of Ireland is required to consider evidence about the young person’s transition to their acquired gender.

4.06. This proposed change would also be consistent with the age at which young people can exercise other rights under the law in Scotland. 16 and 17 year olds are able to make a number of important life decisions without parental involvement or consent. These include:

• getting married or entering a civil partnership;
• recording a change of name; and
• voting in Scottish elections.

4.07. Annex E contains further information about the ages at which young people get rights and when they are presumed to be old and mature enough to act.

Question 5

(This question relates to the reduction of the minimum age of applicants for legal gender recognition to those aged 16 and over from the current age of 18. Question 6 will ask your views on the options for people younger than 16.)

The Scottish Government proposes that people aged 16 and 17 should be able to apply for and obtain legal recognition of their acquired gender. Do you agree or disagree?

Agree

Disagree

Don’t know

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

People aged under 16

4.08.The Scottish Government’s view is that there is a careful balance to be struck in relation to people under 16. On the one hand, we should treat children with dignity and respect, giving weight to their views and wishes in line with their individual capacity. On the other hand, we should ensure that children have the right protection and care.

4.09.People who are under 16 years of age can act on their own behalf in relation to a range of matters. Annex E contains further information about this. The CRWIA at Annex M refers to research evidence about children who identify as transgender.

4.10.The Scottish Government considers that there are five broad options in relation to people under 16 being able to apply for legal gender recognition.

Under 16s – option 1 – nothing for those under 16

4.11.Under this option, applicants would have to be at least 16 to apply for legal recognition of their acquired gender. This would be straightforward, but would stop those under 16 with a clear view of their gender identity from obtaining legal gender recognition.

Under 16s – option 2 – court process

4.12.Option 2 would be for Scotland to adopt a court based process.

4.13.The courts in Scotland deal regularly with decisions involving children. In keeping with Article 3 of the UNCRC, court decisions in Scotland relating to matters such as parental responsibilities and rights ( PRRs) are child-centred. In reaching a decision, the court must regard the welfare of the child concerns as its paramount consideration. ^[32] Further information about PRRs is in Annex F.

4.14.Any court based process, whether instigated by a child’s parents or by the child themself, would focus on the assessment of the child’s welfare. We would also consider specifying the matters the court would have to have regard to in determining what was in the child’s best interests.

4.15.Under this option, a court action could be raised by the child if they had sufficient capacity to do so, or if they did not, by a person or persons who had PRRs for them acting on their behalf. ^[33]

4.16.In civil matters, such as applying for a court order in relation to PRRs, a person under 16 has legal capacity to instruct a solicitor where the person has a general understanding of what it means to do so. A person of 12 and over is presumed to be of sufficient age and maturity to be capable of instructing a solicitor on their own behalf. ^[34]

4.17.Where the action was raised by a person with PRRs for the child, the child’s views would require to be considered. Under the current law, where a court has been asked to make an order in relation to PRRs, the court must, taking into account the child’s age and maturity, and so far as practicable:

• give the child an opportunity to indicate whether they wish to express a view;
• If the child does so wish, give the child an opportunity to express them; and
• have regard to such views as the child may express.

4.18.At age 12 and over, a child is presumed to be old and mature enough to form such a view. ^[35]

4.19.Malta has a court based process of legal gender recognition for those under 18. Those with parental authority for a child may file an application in the court. The court must consider the best interests of the child and give due weight to the views of the child depending on their age and maturity.

4.20.In the Republic of Ireland, applications cannot be made by those aged under 16. However, applications by 16 and 17 year olds require to be accompanied by a court order permitting the application to be made. The court may only grant the order if the child’s parents, surviving parent or guardian consents. Two medical certificates must also be produced to the court. The medical certificates must confirm that:

• the child has a sufficient degree of maturity to decide to apply for gender recognition;
• the child is aware of, has considered and fully understands, the consequences of that decision;
• the child’s decision is freely and independently made; and
• the child has transitioned, or is transitioning to, their preferred gender.

4.21.Under option 2, a child who may not have reached puberty might apply to the court or a person with PRRs for such a child might apply.

Under 16s – option 3 – parental application

4.22.Option 3 would be to permit an application to be made on behalf of a person under 16 by someone with PRRs for them. Typically, this would be the child’s parents. Further information about PRRs, when parents get them and who else may have PRRs is in Annex F.

4.23.Usually, where more than one person has parental rights in relation to a child, each can exercise their rights without the consent of the other or any of the others. ^[36]

4.24.Where a person with PRRs is reaching a major decision regarding the fulfilling or exercise of PRRs, the person is under a duty to have regard to any views the child expresses, taking account of the child’s age and maturity. The person making the decision must also have regard to any views expressed by any other person with PRRs for the child concerned. ^[37] The Scottish Government considers that seeking legal recognition in an acquired gender is an example of a major decision.

4.25.One possibility under this option would be to require the application to be made by all parents with PRRs for a child. This would mean that a person who had PRRs for the child but was not their parent would not require to be involved. However, we would still expect the person(s) applying on the child’s behalf to have regard to the views of such a person.

4.26.Another possibility under this option would be to require all people with PRRs to apply, not just a parent or parents with PRRs. This may mean that a local authority that had PRRs for a child would need to be involved in the application process.

4.27.If all the people who required to be involved in the application did not agree ^[38] , then a court order could be sought under existing arrangements. Section 11(1) of the Children (Scotland) Act 1995 allows the Sheriff Court or the Court of Session to make an order in relation to PRRs. The court could then make a decision based on the child’s welfare.

4.28.There are some children for whom no one has PRRs. One option might be for a person who has an interest to obtain PRRs from the court and then apply for legal gender recognition on behalf of the child.

4.29. Other matters will require careful consideration:

• how best to ensure the child’s views have been sought and considered before an application is made;
• if those with PRRs require to make a statutory declaration, the wording of that declaration;
• whether a person who has limited PRRs should be involved in the process or whether the person must have all PRRs for the child; and
• how the process would work if a local authority had PRRs for the child.

4.30.In summary, therefore, under this option all parents with PRRs (or, perhaps, everybody with PRRs) would have to apply, having had regard to the child’s views. If there is a dispute amongst those with PRRs, an application could be made to the court to resolve the matter. There may be restrictions on the role of a person with limited PRRs.

4.31.Under this option, applications could be made on behalf of very young children, including both those who lack legal capacity and who have not reached puberty.

Under 16s – option 4 – minimum age of 12

4.32.Option 4 would permit children aged 12 and above to apply in the same way as those aged 16 or above.

4.33.This option would offer a clear test of who could apply for legal gender recognition.

4.34.However, this option would take no account of a child’s capacity to take decisions nor their physical maturity.

4.35.In addition, this option would also allow a child or young person aged 12 to 15 to take an important life decision without any assistance or support from their family or others. People aged 12 to 15 should be adequately supported to make a decision about this aspect of their life.

4.36.The Scottish Government does not favour this option as it would allow a child to apply irrespective of their capacity to understand the nature and consequences of their decision.

Under 16s – option 5 – application by capable child

4.37.Option 5 would permit a person under 16 to apply in the same manner as an adult, provided they had capacity to understand the consequences of recognition in their acquired gender.

4.38.Under this option, someone would have to test the child’s capacity. This could potentially be done, for example, by a registered medical practitioner, or by a practising solicitor.

4.39.A person under 16 is considered to have the capacity to consent to any surgical, medical or dental procedure or treatment if, in the opinion of a qualified medical practitioner attending them, they are capable of understanding the nature and possible consequences of the procedure or treatment. ^[39]

4.40.A person under 16 has legal capacity to instruct a solicitor, in connection with any civil matter, where the person has a general understanding of what it means to do so. Someone aged 12 or more is presumed to be old and mature enough to have such understanding. ^[40]

4.41.Arrangements based on individual capacity would allow a sufficiently old and mature child to apply, even if their parents or other people with PRRs did not support their decision. This option would allow children who have sufficient legal capacity, but who may not have reached puberty, to apply.

Question 6

Which of the identified options for children under 16 do you most favour? Please select only one answer.

Option 1 – do nothing for children under 16

Option 2 – court process

Option 3 – parental application

Option 4 – minimum age of 12

Option 5 – applications by capable children

None of these options

If you want, you can give reasons for your answer, add comments, or describe your preferred option if none of the options given reflects your views.