Draft Gender Recognition Bill Guidance

This page is intended as a longer guide to help you support the Scottish Government Gender Recognition Reform (Scotland) Bill consultation. If you would like to read our short simple guidance, you can do so by clicking here. If you keep this page up whilst you have the consultation open in another tab on your internet browser, you will be able to move back and forth between them to help you complete your response.

The Scottish Government wants to know what you think about their draft Bill to reform the Gender Recognition Act (GRA) 2004. The deadline for responding is 17 March 2020.

Click here to open the consultation form in a new window/tab. You can then look back and forth between this guide and the consultation form while you complete your response.

You don’t need to live in Scotland to take part. Wherever you live in the world, you can tell the Scottish Government you support GRA reform.

If you are an organisation and want to talk to us about how to ensure your consultation response can be most effective, please get in touch by emailing info@scottishtrans.org

If you are an individual and want to talk to us about what you’d like to put into your response, please get in touch by emailing info@scottishtrans.org

Our full response to the Bill will be published as soon as we’ve written it. Feel free to use any parts you find useful.

The GRA allows some trans people to change the sex on their birth certificate, providing them with formal legal recognition of who they are. Having a birth certificate with the correct sex on it makes sure trans people’s final bit of paperwork matches their life. It helps trans people marry and get their pension correctly, and it gives them improved privacy.  However, the current process is bureaucratic, invasive and humiliating. As a result of these barriers, only one in ten trans people have applied for a gender recognition certificate to change the sex on their birth certificate. We want to improve this, and you can help. Find out more about why the GRA needs reforming.

Remember that GRA reform is only about how trans people are able to update their birth certificates to reflect who they are. These changes do not affect the laws governing how trans people access single-sex spaces, participate in sport, update other identity documents like passports or driving licenses, or interact with services on a day-to-day basis. None of these things are decided by what is on a trans person’s birth certificate.

There are only five questions about the draft Bill. However question four, which asks if you have any other comments, need answers on a range of topics. We’ve separated each of the topics in the guide below, so it is easier to follow, but tried to make it clear that they should all be covered in the same question.

Throughout the consultation, you have the option to simply select which option you agree with to each question, or to select an option and also leave additional information around why you’ve made your selection.

Question 1. Do you have any comments on the proposal that applicants must live in their acquired gender for at least 3 months before applying for a GRC?

Question 2. Do you have any commentso n the proposal that applicants must go through a period of reflection for at least 3 months before obtaining a GRC?

Question 3. Should the minimum age at which a person can apply for legal gender recognition be reduced from 18 to 16?

Question 4. Do you have any other comments on the provisions of the draft Bill?

Question 5. Do you have any comments on the draft Impact Assessments?

Q1: Living in your acquired gender for three months

The draft Bill currently proposes that a gender recognition certificate will only be granted if the applicant states that they have been living in their acquired gender for 3 months prior to the date of application and intend to continue to live in their acquired gender permanently.

There is no evidence to suggest this arbitrary 3 month time period is necessary, and we do not support it.  We will be calling on the Scottish Government to remove this requirement.

We encourage everyone to respond, and in particular:

  • If you’re a trans person you could talk about your experiences of changing various ID and the impact of having to wait longer to change your birth certificate than your other documents.
  • If you’re a trans ally, please talk about why you don’t support making trans people wait 3 months between changing their other ID and applying for a gender recognition certificate to change their birth certificate.
Q2: Three month reflection period

The draft Bill currently proposes that applicants must wait for 3 months after their initial application before confirming that they wish to continue with their application. They would then be granted a gender recognition certificate.

Similarly to Question 1, there is no evidence to suggest this arbitrary 3 month reflection period is necessary, and we do not support it.   We will be calling on the Scottish Government to remove this requirement.

We encourage everyone to respond, and in particular:

·         If you’re a trans person you could talk about how much reflection trans people do before starting to transition and how you feel about being required to have a ‘period of reflection’ after applying for a gender recognition certificate.

·         If you’re a trans ally, please talk about why you don’t support requiring trans people to have a ‘period of reflection’ as though they haven’t already considered their decision.

Q3: Lowering the age for legal gender recognition

The draft Bill proposes to change the law so that 16- and 17-year olds will be able to apply for legal gender recognition. However, it does not propose a system to enable trans children and young people under 16 to apply for legal gender recognition. This question is only about the age of legal recognition and does not affect medical treatment available to young people and children.

We support the Scottish Government’s proposals to lower the age for gender recognition to 16. This would be in line with the rights of 16- and 17-year olds in Scotland to marry, gain employment, vote, and be held legally responsible for their actions. We think that 16- and 17-year olds should also be able to change their birth certificate to match who they are.

However, we will also be telling the Scottish Government that trans children and young people under the age of 16 should be able to update their birth certificates with aid of parental or guardian support.  This would match with their existing ability to change their sex on their school records, medical records and passport. Often children and young people under 16 need to use their birth certificate more than adults do, so being able to change it is particularly important to protect their privacy.

We encourage everyone to respond, and in particular:

·         If you’re a young trans person, you could talk about the difference this would make to you and why this matters to you.

·         If you’re a trans person over 18, you could talk about the impact that getting legal gender recognition sooner would have had on you.

·         If you’re a trans ally, or a parent, you could talk about why you would support this for young people.

Q4: Any other comments: support the bill

Making legal gender recognition a more straightforward process will relieve a lot of stress for many trans people, who will no longer need to gather evidence and medical reports to be recognised as who they are.   Trans people will still be able to access medical care and social and psychological support as part of their transition, but that will be separate from their application to update their birth certificate.

We encourage everyone to respond, and in particular:

·         If you’re a trans person with a gender recognition certificate, you could talk about how this reform would have helped your experience of applying.

·         If you’re a trans person without a gender recognition certificate, you could talk about what difference this reform would make to your ability and willingness to apply.

·         If you’re a trans ally, please talk about why you support reform of the Gender Recognition Act.

Q4: Any other comments: non-binary

Although this Bill represents an improvement in trans people’s rights, there are major gaps that will mean it only benefits some trans people. Non-binary people (those who don’t identify as exclusively male or female) will still not be legally recognised, which will leave them with inconsistencies in important documents as well as a lack of recognition in day to day life. We will tell the Scottish Government that this Bill is not a success for the whole trans community while it leaves non-binary people out.

We encourage everyone to respond, and in particular:

·         If you’re a non-binary person, you could talk about the impact that being able to access gender recognition would have on you.

·         If you’re not non-binary, you could talk about why you think it’s important that non-binary people are recognised and treated with respect.

Q4: Any other comments: Section 22

The Scottish Government suggest in the consultation that they may introduce additional exceptions to Section 22 of the Gender Recognition Act, which protects people’s privacy and governs the rules about disclosure of information about people who have a Gender Recognition Certificate.

We don’t think that additional exceptions are needed – the existing ones seem sensible, and we think that there is no need to add any others. Upholding trans people’s privacy is one of the key principles of a legal gender recognition process, and we think that any additional exceptions may undermine this.

The example that the Scottish Government gives of a potential additional exception – for HR staff to be able to out trans applicants for jobs to other colleagues in their workplace – seems far-reaching and unnecessary. This would seriously undermine trans people’s privacy.

We encourage everyone to respond, and in particular:

·         If you’re a trans person, you could talk about how you would feel knowing that your trans status would not be kept private when you were applying for a job

·         If you are a trans ally, you could talk about why you think trans people deserve privacy around their trans history

Q4: Any other comments: An interested person applying to have a GRC revoked

The Scottish Government is proposing that “a person who has an interest in a gender recognition certificate” could apply to the sheriff to have a GRC revoked on grounds of fraudulent application. It is unclear from the information provided who would constitute “a person who has an interest in a gender recognition certificate”.

We will be asking the Scottish Government to provide greater clarity around this aspect of the draft Bill. We would not want individuals to be able to make frivolous applications to the sheriff to revoke a trans person’s GRC. Such a process might be used by an unsupportive family member, or an ex-spouse, to cause greater difficulty and distress for a trans person whom they would prefer had not obtained legal gender recognition. It is important that any process by which an individual could apply to have another person’s GRC revoked was sensible and limited in who would be considered “a person who has an interest in a gender recognition certificate”.

We encourage everyone to respond, and in particular:

·         If you are a trans person, you may want to leave a comment explaining why you feel that it would be unfair for various individuals to be able to apply to have your GRC revoked

Q4: Any other comments: Ordinarily Resident

 

The Scottish Government is proposing that anyone with a birth or adoption certificate from Scotland, or anyone who is ordinarily resident in Scotland, will be able to apply for a Gender Recognition Certificate.

Requiring someone to be ‘ordinarily resident’ in Scotland may prevent asylum seekers and refugees, or other people without current, valid leave to remain who are in Scotland, from being able to apply for a GRC. We will be calling on the Scottish Government to ensure that no one is unfairly blocked from being able to apply for a GRC.

 

Q5: Impact of reform on other groups

The Scottish Government wants to know if you think the Bill could impact on anyone else.

We will be telling the Scottish Government that this Bill will not have a detrimental impact on anyone else’s rights. The only thing that the Bill covers is how trans people’s birth certificates are changed, which impacts the level of privacy they are entitled to, such as when getting a job or marrying, and how they are recognised after death.

Access to single-sex spaces and facilities, such as toilets, changing rooms, and women-only services will not be impacted. Nobody is required to show a birth certificate to prove their eligibility for these spaces or services now, and this will not change. In fact, much of the women’s sector in Scotland has been including trans women in their women’s services for a decade, with no reported difficulties.

Remember that how someone applies for gender recognition – or whether their birth certificate matches who they are – does not impact on their access to single sex spaces, or anything else that does not require a birth certificate. Trans people can already change the sex on their passports and medical records by statutory declaration as soon as they start living as who they are.

We encourage everyone to respond, and in particular:

·         If you’re a trans person, you could talk about the importance of already being able to use single-sex services that match your identity, regardless of your birth certificate

·         If you’re a service provider, you could talk about how these reforms would not change how you provide services to trans people

·         If you’re a trans ally, you could talk about why you support trans people’s rights and why you don’t feel they impact on your own rights