Gender Recognition Act 2004 review

Following a consultation on reforming the 2004 Gender Recognition Act (GRA) in 2018, we will publish a Gender Recognition Bill which will reform the current GRA.

The draft bill will be published by the end of 2019 and be accompanied by a comprehensive draft equality impact assessment.

We will carry out a full and public consultation on the bill and its proposals.

Trans people

What does transgender or trans mean?

These are terms used to describe people who find that their gender identity does not correspond with the sex they were assigned at birth.

A trans person feels, very strongly, that their day to day identity does not match what it says on their birth certificate. Since the Gender Recognition Act 2004 came into force, trans people have been able to obtain a gender recognition certificate by applying to the Gender Recognition Panel.

These are terms used to describe people who find that their gender identity does not correspond with the sex they were assigned at birth.

A non-binary person does not identify as a man or a woman but has a gender identity

The existing legislation

What legislation is currently in place? 

A transgender person’s gender identity does not correspond with the sex shown on their original birth certificate.

The Gender Recognition Act 2004 meant that for the first time a transgender person could apply to a tribunal for a “gender recognition certificate” which would allow the recipient to be legally recognised in the gender they live in.  

When a person is issued with a full gender recognition certificate, this has the effect of changing their sex for legal purposes. 

The Act applies across the UK, and where the person’s birth was registered in the UK, they are also issued with a new birth certificate reflecting this gender.

How does legal gender recognition currently work? 

Applications are considered by the Gender Recognition Panel, which is a UK-wide tribunal.  

Applicants must be at least 18 years old. The vast majority of applicants use the standard track which means that they must satisfy the Gender Recognition Panel that they have, or have had, gender dysphoria by producing two medical reports;  that they have lived in the acquired gender throughout a period of two years; 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. 

It is not necessary for a person to have had medical treatment such as hormone treatment or gender reassignment surgery in order to obtain legal recognition under the 2004 Act.  However, if an applicant under either the standard or alternative track has had such treatment or surgery, then details of that treatment must be provided in a medical report submitted with their application. 

If the Panel is content that an application meets the requirements of the 2004 Act they will issue the successful applicant with a full gender recognition certificate.  

How many people living in Scotland have been issued with a full gender recognition certificate?

In 2016-2017, the Gender Recognition Panel issued a total of 318 full gender recognition certificates but do not provide statistics on where people live.

From information held by National Records of Scotland that up to the end of 2016, the total number of people born or adopted in Scotland who have been recognised in their acquired gender is 287. 

Proposals for Reform

When will the Scottish Government consult on the draft Bill?

We will publish the bill by the end of 2019 and will carry out a full public consultation on that draft bill. The government has said it will only introduce a Bill to Parliament after that consultation has taken place and responses analysed.

What will the draft consultation propose?

It will propose that applicants for a gender recognition certificate:

• Will no longer need to provide medical evidence to the current Gender Recogntion Panel.
• Will continue to have to provide a statutory declaration that they intend to live permanently as a man or a woman.
• Will need to state in the statutory declaration that they have already been living as a man or woman for at least 3 months.
• Will be given a mandatory 3 months reflection period after an application has been made and checked to ensure the necessary information and statutory declaration has been provided.  The gender recognition certificate will only be granted once the 3 months have passed and the applicant has confirmed that they still wish to proceed.

Do you intend to extend legal gender recognition to those under 16?

No. We will consult on the reduction of the minimum age for legal gender recognition from 18 to 16. We also intend to consider further what support may be needed for young people who are uncertain about their gender identity.

Does the Scottish Government propose any changes to any of the exemptions in the Equality Act 2010 for example, in relation to single sex services? 

No, there will be no change.

What are you doing to ensure both women’s rights and trans rights are upheld?

Both women’s rights and trans rights continue to be protected under Equality legislation, and this will not change.  Nor are we proposing anything which alter these protections. We will develop guidance in this area will allow us to ensure that we continue to uphold both women’s rights and trans rights, which have been hard fought for. The guidance will be used by the Scottish Government as part of the policy development process, and will also be available to public services as well as anyone with an interest.  Everyone deserves to be treated with dignity and respect, and to be protected from harm, and we will continue to work to ensure that everyone’s rights are upheld.

What is the planned guidance on women’s rights and trans rights about?

The guidance on the rights of women and trans people will be developed for use by the Scottish Government and other public bodies in relation to service provision and policy-making. It will also be available publicly. 

What is the working group on sex and gender in data about?

It will consider references to “sex” and to “gender” in data and what more can and should be done to disaggregate data by male or female. Disaggregating data in this way can provide evidence on where there may be discrimination in society which needs to be tackled.

What is a statutory declaration?

A statutory declaration is a formal solemn statement made under the Statutory Declarations Act 1835 certifying that something is true to be best knowledge of the person making the statement. 

In Scotland, statutory declarations made for the purpose of the Gender Recognition Act 2004 are required to be made before a notary public or a justice of the peace who are authorised to take oaths.

People seeking gender recognition will still be required to make statutory declarations that they intend to live permanently in their acquired gender until death.   They will also be required to live in their acquired gender before applying.

People could not just decide, on a whim, that they wish to obtain a full Gender Recognition Certificate.

Making a false statutory declaration is a criminal offence.

Do you intend to extend legal gender recognition to non-binary people?

No, but we will set up a working group to consider what more could be done to further the inclusion of non-binary people in society. This will look at best practice internationally, in Scotland and from the rest of the UK.

UK Government

What is the UK Government doing?

Decisions on any changes to the Gender Recognition Act 2004 in relation to how it operates in England and Wales are a matter for the UK Government. They carried out their own consultation on reform in 2018.

We will of course consider what moves there are elsewhere in UK and will be seeking to discuss with relevant UK Ministers. 

The Scottish Government is not seeking any changes to the (generally) reserved Equality Act 2010 but if any clarity is needed we would discuss with the UK Government.