Review of the Gender Recognition Act 2004: consultation

Part 7. Non-binary people

7.01.A non-binary person’s gender identity is not that of a man or woman.

7.02.The Equality and Human Rights Commission Note on Measuring Gender Identity [63] reported that 0.4% of people who answered a question about their gender identity reported that they identified in another way from a man or woman.

7.03. Principle 3 of the Yogyakarta Principles emphasises that:

“Each person’s self-defined …… gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”

7.04.A survey of non-binary people has indicated that they believe that because their gender identities have no legal recognition, they are refused services and that their lack of inclusion and visibility has adverse impacts, for example on their self-esteem and mental health. [64] Taking action to ensure that non-binary people are not excluded could increase their acceptance and reduce the levels of discrimination experienced.

7.05.We are aware that increasingly employers and service providers [65] are recognising that their employees and customers may not identify as men or women.

7.06.Some countries recognise non-binary people to varying degrees, or offer alternatives to identifying as either a man or woman (or as male or female) for the purposes of official records. Annex D contains further information about some of these arrangements.

7.07. The Scottish Government has identified six broad options to advance the recognition of non-binary people. It may be possible to pursue more than one of these options. Provisions to recognise non-binary people are radical and require careful thought.

Option 1 – changes to administrative forms

7.08. Under this option, the Scottish Government and Scottish public bodies would be required to review all administrative forms, to identify:

• which requests for information about sex or gender are unnecessary and should be removed;
• which requests for information about sex or gender are justifiable, for instance, for equality monitoring purposes, or where particular medical services are targeted at men rather than women or vice versa; and
• which requests for information about gender could include an option, or options, inclusive of non-binary people.

7.09.The Australian Government has issued Guidelines on the Recognition of Sex and Gender [66] for all Australian Government departments and agencies to follow. These Guidelines relate to the collection of data about sex and gender, and the correction or amendment of that data. For example, the Guidelines indicate that where sex and/or gender information is collected and recorded in a personal record, individuals should be given the option to select M (male), F (female) or X (Indeterminate/Intersex/Unspecified). The Guidelines confirm that the X category can refer to any person with a non-binary gender identity.

Option 2 – the Book of Non-Binary Identity

7.10.Under Option 2, a Book of Non-Binary Identity could be established by National Records of Scotland, separately from the Register of Births.

7.11.Under this option, a non-binary person could apply to enter their name and their gender identity in the Book. A fee would be charged to cover the administration costs. Whilst a formal acknowledgement would be issued to the applicant, entry in the Book would have no legal effect on the gender in which the person was legally recognised in Scotland. The Scottish Government does not favour this option, since it does not advance the recognition of non-binary people.

Option 3 – limited identity document and record changes

7.12.A further option would be for the Scottish Government to seek changes to identity documents, such as passports or driving licences.

7.13.Under existing Civil Aviation Organisation Standards, a passport cannot be issued without the holder’s sex being recorded in it. [67] Under those standards, a holder’s sex can be recorded as ‘M’ for male, ‘F’ for female or ‘X’ for ‘unspecified’. The current format of the UK passport allows for the holder only to be recorded as either ‘M’ or ‘F’.

7.14.New Zealand is a country that permits its citizens to apply for their passport to disclose their sex as ‘X’ provided that they submit a statutory declaration indicating:

• the sex or gender identity (M, F or X) in which they wish to be disclosed in their passport; and
• how long they have maintained their current sex/gender identity. [68]

7.15.Australia also allows a passport holder to apply for their sex to be shown in their passport as ‘X’. The Australian Passport Office website states that a passport holder who requested that their sex be shown as ‘X’ must submit confirmation from a registered medical practitioner or psychologist that the holder is of ‘indeterminate sex or is intersex’. [69] The Scottish Government understands this process is intended to cover non-binary people as is required under the Australian Government’s Guidelines on the Recognition of Sex and Gender. [70]

7.16.Denmark and Canada [71] also permit their citizens to request that their passport disclose their sex as ‘X’.

7.17.A UK driving licence records the holder’s sex as part of a unique identifier consisting of letters and numbers: one of the digits will either be 0 or 1 for a male, or 5 or 6 for a female.

7.18.Both the UK passport and driving licence are reserved matters and the Scottish Government would have to discuss this with the UK Government. The Women and Equalities Select Committee Report on Transgender Equality recommended that:

“The UK must follow Australia’s lead in introducing an option to record gender as “X” on a passport.”

7.19.The UK Government indicated in its response that it:

“maintained the need to gather information about gender at the point of application and include this on the passport chip.” [72]

7.20.The response did not indicate whether the UK Government was minded to permit the holder’s gender to be recorded as ‘X’ on the face of the passport.

7.21.Some Scottish records also contain information about a person’s sex, such as the Community Health Index number ( CHI number). A CHI number is allocated to every patient in NHS Scotland. The number can currently be changed to reflect the gender identity of trans men and women. But it cannot currently be changed to record the gender identity of a non-binary patient.

7.22.There would be costs in updating IT systems to accommodate changes. For example, if a non-binary people’s gender was to be reflected in their Community Health Index record maintained by NHS Boards of all patients in Scotland there might be costs including to update breast and cancer screening IT systems that use CHI numbers.

Option 4 – recognition using proposed self-declaration system

7.23.Under this option, a person born in Scotland or resident in Scotland would be able to apply to the proposed Scottish self-declaration system for recognition of their non-binary gender identity. Where they were born in Scotland they would then be able to access an updated birth certificate reflecting their gender identity.

7.24.Under the existing 2004 Act arrangements, the effect of recognition is that the applicant is recognised as being of the opposite sex to the recorded sex in their entry in the Register of Births.

7.25.Recognition of a new legal sex in Scotland for people whose gender identity is non-binary would be a significant legal step.

7.26.There would be consequential changes require to other areas of devolved law in Scotland including:

• parentage law would need to clearly include non-binary people;
• marriage law would need a new category of marriage to include a marriage involving a non-binary person;
• registration law would requirement amendment to ensure that non-binary people were included; [73]
• criminal law may require amendment to ensure that any remaining gender specific offences can be committed by people of all legal sexes. [74]

7.27.Further information about these examples and others is set out in Annex J.

7.28.There could also be implications for other reserved areas that are gender specific such as maternity pay and leave. The protected characteristics of “sex” and “sexual orientation” in the Equality Act 2010 recognise only two sexes. We would need to ensure that we had identified all reserved impacts and agree any consequential changes required in these areas with the UK Government.

7.29.If Scotland chose to move alone to recognise non-binary people in the same way that we recognise people who identify as men and women, this could affect the rights of non-binary people who leave Scotland. The other jurisdictions of the UK and other countries might choose not to recognise a non-binary person’s gender. Scotland cannot require another country to recognise a gender status which that country does not confer to its own citizens, whether this is the gender identity of a non-binary person or the acquired gender of a person recognised under the existing 2004 Act.

Option 5 – an incremental approach towards legal recognition

7.30.Under Option 5, the Scottish Government would commit to increasing recognition of non-binary people gradually. We think that this approach would involve:

• the adoption of options 1, 2 and 3 discussed above;
• our commissioning detailed research into the impact the lack of recognition has for non-binary people, the discrimination they experience and the implications of full recognition of non-binary people;
• a duty on the Scottish Ministers to consider whether further action is appropriate to further increase recognition of non-binary people; and
• Scotland moving towards full recognition including the possibility of amending birth certificates of those born in Scotland.

Option 6 – seek amendment of the Equality Act 2010

7.31.We have already noted the evidence that non-binary people experience discrimination.

7.32.The 2010 Act makes provision for the protection of individuals from unfair treatment and the promotion of a more equal society. The 2010 Act defines a number of protected characteristics. It provides that subject to some exceptions, it is unlawful to discriminate, harass or victimise another person because they have, are perceived to have, or associate with someone who has, a protected characteristic.

7.33.One protected characteristic is gender reassignment. As a consequence, it is usually unlawful to discriminate against a person because they propose to undergo, are undergoing or have undergone a process or part of a process to reassign their sex by changing their physiological or other characteristics of sex. [75] This process need not include medical treatment. [76]

7.34.The Equality and Human Rights Commission have said that the gender reassignment protected characteristic must be broadened to include all people who face ill treatment as a result of their gender identity. [77]

7.35.The Scottish Parliament has some powers to legislate in respect of equal opportunities. Further details about these powers are in Annex G. However, the Scottish Parliament cannot legislate to alter the existing protected characteristics.

7.36.This means that the Scottish Government would need to work with the UK Government on any amendments to the protected characteristic of gender reassignment.

7.37.Increasing the protections against discrimination on the basis of a person’s gender identity may have impacts for the provision of services.

7.38.The Scottish Government are not aware of any demand from non-binary people for provision of services specifically designed for them. Instead, we understand that non-binary people would like the right to choose, or to be consulted about, whether a service provided for men or for women would best meet their needs.

7.39.Nonetheless, there may be concerns that recognition of non-binary people would have financial implications for businesses and service providers, including the public sector. For example:

• NHS Scotland currently aims to accommodate all patients in hospital in single-sex wards;
• toilets or changing facilities in publicly accessible building are often designated for the use of either men or women;
• the Scottish Prison Service has estimated that the cost of a new small prison unit for 20-30 people might be between £8.7 million and £10.7 million.

7.40.The Partial Business and Regulatory Impact Assessment in Annex L indicates that it is not currently possible to accurately identify the costs involved in the recognition of non-binary people, as much depends on exactly which option(s) are chosen. However, interviewees did indicate that many IT systems would need to be upgraded. For example, interviewees noted that Her Majesty’s Revenue and Customs require them to provide information about whether employees are male or female. One interviewee noted that they are considering making the option of gender neutral toilets available to staff.

7.41.We would need to consider whether a scheme for full recognition of non-binary people should limit any requirement to adapt existing services or facilities for non-binary people only to what is reasonable in the particular circumstances. For instance, a disabled person’s employer is under a duty to make reasonable adjustments to enable the disabled worker to access what they need to do and keep their job. Under those arrangements, what is reasonable for an organisation will depend, in part, on the size and nature of the organisation. Any limitation of this nature might require amendments to the 2010 Act, which, as indicated above, is generally reserved.

Option 7 – no change

7.42.The final option is to do nothing. This is clear, but fails to address concerns about the lack of inclusion and recognition in society of non-binary people.

Question 12

Should Scotland take action to recognise non-binary people?

Yes

No

Don’t know

If you answered No, and if you want, you can give reasons for your answer.

Question 13

If you answered Yes to Question 12, which of the identified options to give recognition to non-binary people do you support? You can select more than one option.

Option 1: Changes to administrative forms

Option 2: Book of Non-binary Identity

Option 3: Limited document changes

Option 4: Full recognition using proposed self-declaration system

Option 5: Incremental approach

Option 6: Amendment of the Equality Act 2010

None of the above options

If you want, you can give reasons for your answer, add comments or, if you think none of Options 1 to 6 is suitable, describe your preferred option.

Question 14

At paragraph 7.26. and in Annex J we have identified the consequential legal impacts if non-binary people could obtain legal gender recognition using the proposed self-declaration system.

Are you aware of other impacts we have not identified?

Yes

No

Don’t know

If you answered Yes, describe the impacts you have identified.