Review of the Gender Recognition Act 2004: consultation

Part 6.Other aspects of the 2004 Act

Privacy issues

6.01.Section 22 of the 2004 Act is intended to protect the privacy of people who have applied for or who have obtained a GRC.

6.02.The provision makes it an offence for a person who has acquired “protected information” in an official capacity to disclose that information. Protected information is information about a person’s application for recognition in their acquired gender under the 2004 Act or about a successful applicant’s gender before it became the acquired gender.

6.03.There are exceptions, for example where disclosure of protected information is made for the purposes of crime prevention or detection, the social security system or pensions, or for the purpose of instituting court proceedings or otherwise for the purposes of court proceedings.

6.04.Scottish Ministers have made an order under section 22 for additional exceptions in relation to devolved matters. ^[51] The Gender Recognition (Disclosure of Information) (Scotland) Order 2005 ^[52] provides that disclosure is not an offence where it is:

• for the purpose of obtaining legal advice;
• for the purpose of enabling a person to decide on the admission or appointment of the subject as a minister of religion;
• made to any one of a specified group of health professionals for medical purposes;
• made by or on behalf of a credit reference agency and is of information contained in an order of a court or tribunal; or
• made in relation to one of a specified group of bankruptcy or insolvency officeholders in order for them to perform their functions.

6.05.When the UK Parliament’s Women and Equality Committee took evidence on transgender equality, it was argued that the exemption for protected information to be disclosed in court proceedings was being misused ^[53] and that exemptions in secondary legislation allowing disclosure to certain medical professionals required extension to psychologists too. ^[54]

6.06.Data protection is reserved, so changes in the effect of section 22 are matters that the Scottish Government may need to discuss with the UK Government.

Question 10

Are any changes to section 22 (prohibition on disclosure of information) necessary?

Yes

No

Don’t know

If you answered Yes, describe the changes you consider are needed.

Equality Act 2010

6.07.The Equality Act 2010 (the 2010 Act) makes it unlawful to discriminate against persons who have certain “protected characteristics”. One of these protected characteristics is “gender reassignment”. The 2010 Act also makes other provision to promote and safeguard equality. It contains a number of exceptions. The 2010 Act is largely reserved. Annex G sets out the Scottish Parliament’s legislative powers in respect of equal opportunities.

6.08.Increased recognition of non-binary people, discussed in Part 7 of this consultation, might require the Scottish Government to discuss with the UK Government whether any amendments are required to the 2010 Act.

6.09.In addition, the changes proposed to the 2004 Act to make it more straightforward to obtain legal recognition of an acquired gender are likely to mean that the Scottish Government will need to ask the UK Government to make changes to reserved legislation, including the 2010 Act, and to legislation applying elsewhere in the UK.

6.10.This can be done by way of an Order under section 104 of the Scotland Act, which allows UK Ministers to make consequential provision following an Act of the Scottish Parliament.

6.11.Potential changes to reserved legislation as a result of the changes proposed to the 2004 Act to make it more straightforward to obtain legal recognition of an acquired gender are:

• the recognition of a Scottish GRC both for the purpose of reserved areas of law and elsewhere in the UK (paragraphs 6.15 to 6.19 below give more details);
• provision so that a person who holds a Scottish GRC but who was born elsewhere in the UK can obtain an updated birth certificate from the relevant part of the UK;
• the continued recognition of GRCs issued under the 2004 Act;
• technical amendments required as a result of the 2004 Act ceasing to apply in Scotland either entirely or in large part.

6.12.There is existing provision in the 2010 Act ^[55] which provides that it is not unlawful for an approved celebrant to refuse to marry or register a civil partnership for a person the approved celebrant reasonably believes holds a full GRC under the 2004 Act.

6.13. The Scottish Government is not seeking a change to the substance of this provision, but it may need to be amended to add a reference to the new proposed Scottish legislation on obtaining legal gender recognition.

6.14.The Scottish Government is also not seeking to amend the 2010 Act to change the existing exception which allows for religious bodies to impose restrictions on the categories of people they wish to employ in a limited range of roles, for example, as a minister of religion. ^[56]

Recognition elsewhere in the UK of Scottish GRCs

6.15. The 2004 Act is UK-wide legislation.

6.16. Under the proposed self-declaration system for legal gender recognition, the Scottish Government wants the rights and responsibilities of those obtaining recognition of their acquired gender to remain the same as they are now under the 2004 Act.

6.17.The Scottish Government will discuss with the UK Government the effect of a Scottish GRC in respect of the rights in matters reserved to the Westminster Parliament, and under the law in other parts of the UK. We will also seek to consult with the Northern Ireland Executive about the recognition of people with a Scottish GRC there.

6.18.As indicated above, UK Ministers have the power to make an order under section 104 of the Scotland Act 1998. This allows UK consequential provisions to be made following an Act of the Scottish Parliament.

6.19.The Minister for Women and Equalities has confirmed that the UK Government will proceed with a review of the operation of the 2004 Act ^[57] and consulting on reform.

Recognition outwith the UK of Scottish GRCs

6.20. Recognition abroad of Scottish GRCs is a matter for other countries rather than for Scotland.

6.21.Scotland cannot require other countries to recognise the acquired gender of a person who has been recognised here. Nor can we require another country to recognise a gender status which that country does not confer to its own citizens.

6.22.If we do adopt a self-declaration system of legal gender recognition, the Scottish Ministers would intend to work with other countries to encourage them to recognise Scottish GRCs.

Recognition in Scotland of a person whose acquired gender has been recognised under foreign law

6.23.If legislation is taken forward following this consultation, there are a number of options for the approach that Scotland could take on recognition of a person who has acquired a gender under the law of a country outside the UK.

6.24.In the Republic of Ireland, the Gender Recognition Act 2015 makes provision for people whose birth or adoption was registered in the Republic or who are ordinarily resident there, but who have been recognised in their acquired gender under the law of another jurisdiction, to apply for an Irish GRC.

6.25.The legislation in Malta provides that a final decision about a person’s gender identity determined by a competent foreign court or authority shall be recognised in Malta. ^[58] No further process is required.

6.26.Where a national of another country within the European Economic Area has been granted recognition of their acquired gender under the law of that country, they do not need to make an application under the 2004 Act in order to be recognised in the UK in that gender. ^[59]

6.27.Under the 2004 Act, a person who has obtained recognition in a specified country or territory outside the UK may apply using the overseas track, explained in Annex C. The specified countries and territories are set out in the Gender Recognition (Approved Countries and Territories) Order 2011. ^[60]

6.28.The Scottish Government’s position is that Scotland ought to recognise GRCs issued by the UK Gender Recognition Panel and people who have been recognised in their acquired gender in a country or territory outside the UK.

6.29.As indicated in paragraph 3.47, the Scottish Government would intend that, in future, automatic recognition should be granted in Scotland where a person’s acquired gender has been legally recognised in another country, including elsewhere in the UK.

6.30.This could be subject to a public policy exception. Under this, it would be possible to refuse recognition here when a person has acquired a gender in another jurisdiction, but only if there were serious concerns either about the process by which the person obtained legal gender recognition or in relation to a specific case. If there should be a dispute about a refusal in Scotland to recognise the legal acquisition of a gender in another jurisdiction, an application could be made to the Scottish courts to determine the matter.

6.31. Recognition of a person’s non-binary gender identity from another jurisdiction will depend on the decision about the recognition of non-binary people in Scotland.

Question 11

Should a person who has been recognised in their acquired gender under the law of another jurisdiction be automatically recognised in Scotland without having to make an application?

Yes

No

Don’t know

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

6.32.The Scottish Government may need to discuss this proposed approach with the UK Government, given the potential implications for reserved matters, and with the UK Government and the Northern Ireland administration, given that a person with legal recognition in Scotland may travel or move to other parts of the UK.

Rules of Court

6.33.There is provision in the Rules of Court in relation to the 2004 Act. For example, provision is made in relation to a case referred by the Secretary of State to quash a decision of the Gender Recognition Panel to grant an application under section 8(5) of the 2004 Act. ^[61]

6.34. Consequential changes may be needed to this and other affected Rules of Court to reflect changes proposed in this consultation. Accordingly, and in line with usual practice, the Scottish Government will prepare a policy paper for the Family Law Committee of the Scottish Civil Justice Council on proposed changes to the Rules of Court. ^[62]

Further information on proposed self-declaration system

6.35. Annex H contains further information on how the proposed self-declaration system for legal gender recognition could operate in Scotland.