Why does the Gender Recognition Act need reformed?

Since 2004, the Gender Recognition Act (GRA) has allowed 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. Trans people have to wait years after they have transitioned and have to send detailed psychiatric and medical reports to a faceless tribunal panel. 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.

ID that you would use day-to-day, such as passports and driving licences, can already be changed much more easily by trans people. We are calling for the process of changing your birth certificate to be improved. We are not asking for any changes to the legal effects of receiving a gender recognition certificate, only changes to the process of applying, and who can apply.

The Scottish Government have recently published a draft bill to reform the Gender Recognition Act.
To find out how to support the draft bill: http://www.equalrecognition.scot/supportthedraftbill


1. Evidence requirements: what’s the problem?

In order to change the gender on their birth certificate, the Gender Recognition Act 2004 requires a person to submit a highly detailed psychiatric report confirming they have been diagnosed with gender dysphoria, how that diagnosis was determined and any treatment they have received. This intrusive and humiliating requirement violates trans people’s right to privacy and self-determination and adds to the stigma that they already face.

The World Professional Association for Transgender Health (WPATH) medical professionals who created the international standards of care for approving trans people’s access to hormones and surgeries, agree that this diagnosis requirement should be removed from legal gender recognition processes:

WPATH logo“No particular medical, surgical, or mental health treatment or diagnosis is an adequate marker for anyone’s gender identity, so these should not be requirements for legal gender change.”

In 2015, Resolution 2048 of the Parliamentary Assembly of the Council of Europe expressed concerns that requiring someone seeking legal recognition of their acquired gender to have been medically treated or diagnosed is a breach of their right to respect for their private life under Article 8 of the ECHR. The resolution calls on all Member States to:

“develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people on birth certificates, identity cards … and other similar documents”.

What are we asking for?

New legislation to introduce a straightforward administrative gender recognition process that is in line with international human rights standards and reflects European best practice. The psychiatric diagnosis requirement should be scrapped in favour of a statutory declaration process which respects the autonomy of the individual applying.


2. Age restriction: what’s the problem?

Young people under 18 years old are currently prevented from applying for a gender recognition certificate to change the sex on their birth certificate.

Photo of Sam, age 14.
14 year old trans young person.

Increasing numbers of young people are transitioning socially, with the full support of their parents. Although they can satisfy all of the other conditions required to change the sex on their birth certificate, young people are denied this human right purely because of their age. This places them at risk of significant discrimination and violations of their privacy in education and employment due to the sex on their birth certificate not reflecting the sex they live as.

“I’m currently 17 and am going away to college next year. I would much prefer to have myself as male on the official records, but they need to have my ‘real’ details on the system.”

Young trans person

What are we asking for?

Young person holding placard stating "I support legal gender recognition for young people".

New legislation should enable people to apply for gender recognition from 16, the age at which young people in Scotland are deemed to have full legal capacity. Children under 16 should also be able to access gender recognition with the additional requirement that their parents or legal guardians provide their consent. Young people who transition already need a great deal of support from their parents or legal guardians who have to make decisions based on what is best for their child, this would be another such decision.

 


3. Non-binary: what’s the problem?

People who have a non-binary identity don’t identify as solely either men or women, they strongly identify as either having a gender which is in-between or beyond those two categories or as having no gender. (Having a non-binary gender identity is different from being born with an intersex body.)

Photo of three non-binary trans people, Oceana, Jai and Vic.
Oceana, Jai and Vic are three non-binary people active in the Equal Recognition Campaign.

Unlike other trans people, non-binary people currently have no legal recognition of their gender at all.

Every time they use health services, apply for a job, go to college, or interact with the state in any way, non-binary people are told that their existence is not valid; they must fit in to one of two categories, both of which undermine how they actually live and identify.

Jai's non-binary visibility jacket patch.
Jai’s non-binary visibility jacket patch.

Scotland is falling behind the growing number of countries who recognise that some people do not identify as men or women and provide them with a gender-neutral option for legal documents, such as birth certificates and passports, to respect their non-binary gender. Currently places such as Oregon, Nevada and California in the USA, Alberta, Newfoundland and Labrador and Nova Scotia in Canada, New South Wales in Australia, New Zealand, Denmark and Malta, all allow gender-neutral birth certificates, passports, or other official documentation.

What are we asking for?

New gender recognition legislation should acknowledge the fact that some people do not identify as men or women and allow people to choose to amend their birth certificates to reflect this. It must not be something that anyone is forced into doing but should be available as a legal option.


Some Frequently Asked Questions:

We know that there’s lots of misinformation out there about reforms to the Gender Recognition Act, and what the negative consequences of changing this law could be. Here, we hope to answer many of the questions you may have about reforms to the Gender Recognition Act, as well as broader questions about trans equality.

We come to all of our policy positions through a combination of our knowledge of equality law and policy, and consultation with trans people and communities, a broad range of partner organisations, and where necessary with experts such as lawyers. This means our policy positions can and do change. We’ll try and keep this page as up to date as possible.

If you’ve got a question that isn’t answered below, please get in touch with us!

What is the Gender Recognition Act?

Since 2004, the Gender Recognition Act has allowed trans men and trans women to change the sex on their birth certificates to reflect their lived identity. The sex recorded on your birth certificate is your ‘legal sex’. The current law requires you to:

  • Be 18 or over
  • Complete a statutory declaration saying that you identify and are living as a man/woman and intend to do so until death
  • Have a psychiatric diagnosis of gender dysphoria
    • Provide detailed evidence of any medical treatments you have had as part of your transition – such as if you are taking hormones, or any surgeries you have had. You must also explain why you have chosen not to have any treatments (this is despite the fact that no medical transition treatments are required to update your birth certificate)
  • Provide two years worth of evidence that you have been living in-line with your identity – such as providing other updated identity documents (e.g. passport, driving licence), letters from public bodies (such as HMRC, NHS), and evidence of your name change

If you fulfil the above criteria, you submit an application to a tribunal of doctors and judges, who never meet you, and they decide whether or not you can have your gender legally recognised. If you are successful, they will grant you with a gender recognition certificate. This changes your legal sex. You can then use a gender recognition certificate to update the sex recorded on your birth certificate. There is no indication on your birth certificate that it has been amended, so your trans history is kept private when you need to use your birth certificate in the future.

ID that you would use day-to-day, such as passports and driving licences, can already be changed much more easily by trans people.

No changes to the legal effects of gender recognition are proposed, but there are proposed changes to the process of applying, and who can apply. Visit our pages on self-declarationage and non-binary to find out more about how and why we think this law needs to change.

How are decision made about placement of trans prisoners?

The Scottish Prison Service takes decisions about where to house trans prisoners based on comprehensive individualised risk-assessment. The priority is always the safety of all prisoners. A trans woman can lawfully be held in a men’s prison estate if necessary for safety and vice versa. This will not change.

Will Gender Recognition Act reforms impact equality law protections for women?

The protected characteristics in equality law, such as race and sex, are legally applied flexibly. The sex provisions protect women from discrimination that happens because of any aspect of being a woman, including your body and the ways you live or are perceived as a woman. Reforming the Gender Recognition Act will not change the protected characteristics in the Equality Act 2010.

All women including trans women are protected. For example, if a trans woman was denied a job because the employer did not want to employ a woman, then that is sex discrimination, whether or not the trans woman has changed her birth certificate sex.

What is the law around trans people and single-sex services?

Trans people and access to single-sex services is covered by the Equality Act 2010, not by the Gender Recognition Act.

Trans people who meet the threshold for the protected characteristic of ‘gender reassignment’ in the Equality Act 2010 can use single-sex services that align with their gender. The law calls trans people who meet this threshold ‘transsexual’ people, but this describes a person who is:

“proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”[1]

The definition makes it clear that in order to have the protected characteristic, a person does not need to have undergone any gender reassignment medical treatments, or to be under medical supervision. It also makes it clear that you do not need to have obtained legal gender recognition. Social aspects of changing your sex count as well (in the definition, called ‘other attributes of sex’).

As the legal definition of the term ‘transsexual’ is much broader than the historical medical definition, we use the term ‘trans’ in its place (although still meaning those people with the protected characteristic of gender reassignment).

This means that trans women can use single-sex services for females, and trans men can use single-sex services for males. This is outlined in the original Statutory Code of Practice[2] (SCoP) that was produced to go alongside the Equality Act 2010 which gives information on how to ensure single-sex services do not unlawfully exclude trans people.

The SCoP is clear at section 13.57 that:

“If a service provider provides single- or separate sex services for women and men, or provides services differently for women and men, they should treat transsexual people according to the gender role in which they present.” (emphasis added)

This establishes that a single- or separate sex service does not describe, and should not default to, service provision only to those people who share their biological sex at birth or legal sex, but also to all trans people with the protected characteristic of gender reassignment who present, live, and identify in a way that is in-line with that service.

This means that the starting position is that women-only services are inclusive of trans women, and that men-only services are inclusive of trans men.

There is an additional exception in the Equality Act that allow single- or separate sex service providers to treat trans people differently if they feel it is necessary, but this is not required to be used. There is never any legal requirement to treat trans people differently in a single-sex service.

Any choice to use this exception to restrict or adapt trans people’s access to or treatment in a single-sex services must be a ‘proportionate means of achieving a legitimate aim’. The SCoP expands on the restrictiveness with which this exception must be applied at section 13.60, which includes the line “any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances.” Section 13.60 also makes it clear that the exception that allow trans people to be treated differently must be used and applied on a “case-by-case” basis.

Using the term “sex” does not mean that services should exclude trans people. The term sex is used in the law, and the law is clear that treating trans people differently is an exception you can only make in limited circumstances, not a rule of how services should be provided.

[1] https://www.legislation.gov.uk/ukpga/2010/15/section/7

[2] https://www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf

Can trans people use toilets and changing rooms that align with their identity?

Trans men and trans women cannot be lawfully excluded from most public single-sex spaces that align with their identities. A specific example is given in the original Statutory Code of Practice that was produced to go alongside the Equality Act around changing rooms which states:

“A clothes shop has separate changing areas for male and female customers to try on garments in cubicles. The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing rooms as privacy and decency of all users can be assured by the provision of separate cubicles.”[1]

This example is also clearly applicable to public toilets. There has also been case law which establishes that trans men and trans women are legally entitled to use public toilets in line with their identity.[2] In toilets and changing rooms with adequate privacy, trans people should use the spaces that align with their identity.

If there is a complex situation regarding an individual trans person or another service user has a religious or other objection to changing in a communal area alongside a particular person, then service providers should take proportional steps to provide greater privacy levels, stagger the changing times of the service users, or provide single-user gender neutral changing spaces.

[1] https://www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf

[2] http://www.lawcentres.org.uk/policy/news/news/kirklees-law-centre-wins-landmark-transgender-discrimination-case

 

If the GRA is reformed, how would Scotland's law on this compared to other places in the world?

The changes we are calling for would bring Scotland in-line with international best practice. Below are some of the other countries or places that already do some or all of the things our campaign is calling for:

Argentina - Self-declaration, no minimum age

Belgium - Self-declaration

Canada (different for different provinces)

Alberta - Self-declaration, non-binary

Newfoundland and Labrador - Self-declaration, no minimum age, non-binary

Northwest Territories - Self-declaration, no minimum age, non-binary

Nova Scotia - Self-declaration, no minimum age, non-binary

Yukon - Self-decalartion, no minimum age

Colombia - Self-declaration

Denmark - Self-declaration

Ireland - Self-declaration

Malta - Self-declaration, no minimum age, non-binary

Mexico (different in different states)

Mexico City - self-declaration

Michoacán - self-declaration

Nayarit - self-declaration

Norway - Self-declaration

Portugal - Self-declaration

Spain (different in different regions)

Andalucia - Self-declaration

Community of Madrid - Self-declaration

USA (different in different states)

California - Self-declaration, no minimum age, non-binary

Idaho - Self-declaration, non-binary

Montana - Self-declaration, no minimum age

Nevada - Self-declaration, no minimum age, non-binary

New Jersey - Self-declaration, no minimum age, non-binary

New York City - Self-declaration, non-binary

Oregon - Self-declaration, no minimum age, non-binary

Washington State - Self-declaration, non-binary

Uruguay - Self-declaration, no minimum age, non-binary

 

What about trans people and sport?

The Gender Recognition Act contains a specific exemption at section 19 relating to sport. This section permits sports governing bodies to restrict participation of trans people who have obtained legal gender recognition, if that is necessary to ensure fairness or safety. This means that a trans woman who is legally recognised as female can be restricted from participation in women-only sport if necessary, and vice versa.

There are no proposals to remove the sports exemption from the Gender Recognition Act, and the Equal Recognition campaign does not call for its removal.

When can trans people compete in sports?

Different sports governing bodies have different rules governing how trans people can compete – there is no single rule applied to all trans people across all sports. This is for several reasons, including:

·        What counts as an advantage will vary between sports, and therefore in some sports trans people may have an advantage in the category that corresponds with their identity, and in others they will not.

·        Rules may be stricter at elite level than at lower levels due to the finer margins amongst competitors

·        Participation in women’s sport tends to be more restricted than participation in the men’s sport

We favour evidence-based decisions about trans people’s participation in sports, led by sport scientists and sports governing bodies.

What about recreational fitness, health and wellbeing?

Where trans people are accessing sports and leisure services for health, wellbeing and fitness, established practice is to include trans people in facilities and services in-line with their lived identity. This is regardless of whether they have obtained legal gender recognition. This would apply in most community sport and leisure settings, such as in gyms and swimming pools.

Will reforming the GRA impact access to medical treatments?

Obtaining legal gender recognition does not oblige the NHS to provide an individual with access to any medical treatments. A person who has changed their legal sex will not be able to use this to ensure their access to such treatments, and the age at which they are provided, will not be affected.

The Gender Recognition Act 2004 has never required a trans person to take hormones, or have any surgeries, to change the sex on their birth certificate. What it does require is intrusive and detailed medical evidence about any changes you have or have not made to your body, despite these changes not affecting your eligibility to obtain legal gender recognition.

This means that proposed changes to remove medical evidence and move to a system of self-declaration will have no impact on the type of body a trans person must have before they can have their gender legally recognised.

The process of obtaining legal gender recognition should be entirely separate from medical treatments. This position is supported by the medical experts in trans healthcare, the World Professional Association for Transgender Health, who state:

WPATH opposes all medical requirements that act as barriers to those wishing to change legal sex or gender markers on documents. These include requirements for diagnosis, counseling or therapy, puberty blockers, hormones, any form of surgery (including that which involves sterilization), or any other requirements for any form of clinical treatment or letters from doctors.[1]

Are gender non-conforming children and young people encouraged to transition?

A common misconception is that gender non-conforming people, particularly young people and children, are being encouraged to transition by LGBT or trans organisations. This is simply not the case. We do not believe that a person who is gender non-conforming must be trans. Our position is that young people and children should be supported to express and explore their gender without any pressure or external expectations.

All children and young people should be safe and comfortable to express who they are. Respecting what a child is telling you about how they feel about their gender, and how they’d like to express themselves, does not close off options for what their life or identity may be like in the future. It simply reassures them that they will be supported and loved no matter who they may grow up to be. Allowing trans children to take reversible actions about how they express themselves – such as the name and pronouns they use, and the clothes they wear – does not restrict their long-term future options.

We do not think that a young boy who likes wearing princess dresses, trying on his mum’s make up and whose favourite colour is pink, is a trans girl. We do not think that a person’s interests, likes and dislikes are a predictor for their gender identity, and we do not think that being gender non-conforming means you have to transition.

There are however trans children and young people in Scotland who do transition, and live happy, healthy lives with the support of their parents, families and peers. With their parent’s consent they can already change their gender on their medical records and passport but their birth certificate remains stuck in their old gender which causes them significant distress and inequality. This is why we feel that children under 16 should be able to apply for legal recognition with their parent’s consent.

All children and young people should be supported, respected and affirmed, no matter how they experience or express their gender.

Isn’t being trans just about believing in gender stereotypes?

It does a disservice to the trans community to imply that we uphold gender stereotypes more than others, or that we reinforce gender stereotypes by transitioning. Often, trans people feel immensely pressured to conform to gender stereotypes in order to have who they are taken seriously. Our safety and acceptance often depends on whether wider society considers us to be striving hard enough to embody “typical womanhood” or “typical manhood”.

As a society, we all perpetuate gender stereotypes to different degrees. This is as true for non-trans people as it is for trans people. Trans communities are constantly having conversations about why gender stereotypes are harmful and restrictive, as they often impact profoundly on our lives. There are a growing number of trans people who openly challenge gender stereotypes, even after their transition, sometimes at great personal cost.

As a trans equality organisation, we believe strongly that gender stereotypes harm everybody – and strive to work for a world in which they are dismantled. This does not run counter to also recognising and respecting trans people’s identities, but in fact goes hand in hand with it.

If you believe that breaking down gender stereotypes is key to building a better society, then we agree, but we think this includes the gender stereotype that the body you were born with should define the way you experience and express your gender. 

Do you think that all language should be made gender neutral?

We don’t believe that all language should be made gender neutral. Instead, we favour expanding the language used when talking about certain topics to ensure trans people aren’t excluded. Just as we think that it’s important that trans people feel seen and included in language used, we think that it’s important that all groups do.

For example, when talking about a topic like period poverty, we support large amounts of the information or publicity talking about women and girls. It is a reality that almost everyone who menstruates is a woman or girl. However there are some trans men and non-binary people who menstruate, and may also be affected.

Therefore it is important to ensure that trans people experiencing period poverty would still feel included in a campaign, which would be unlikely to be the case if all of the language referred exclusively to women and girls. Having a range of communications and messaging can ensure that everyone is included. Nowadays, technology enables more targeted and inclusive messaging to reach different sections of the population.

It also ensures that practical issues around how a policy is implemented take account of trans people. In this example, it may be that free period products are provided in some gender neutral bathrooms, rather than just women’s bathrooms. This would allow trans men and non-binary people to access free period products without using spaces that they felt undermined how they live and identify.

We feel similarly about language around pregnancy and parenthood. Of course, it is a reality that almost everyone who is pregnant or may become pregnant is a woman or girl. We absolutely support women’s right to have language used to describe pregnancy and motherhood that is affirming of their identity and experiences.

We do think it’s important that trans people who are pregnant or parents are not required to be labelled with language that would make them feel excluded, however. A trans man or non-binary person who is carrying a baby may prefer to be called a “pregnant man”, a “pregnant person”, a “father” or a “parent”. Being flexible and responsive to a person’s request can ensure that you’re using language that works for them, without needing to use gender neutral language at all times.

Sometimes using gender neutral language is a positive action you can take to better include lots of people, not just trans people. The language we use often reflects how we think about the world.

For example, if you tell someone you saw a doctor that morning, and they reply “what did he say?” this may tell you something about the assumptions that person makes about who is likely to be a doctor.

Similarly, if you ask a new female colleague if she has a boyfriend, and this colleague’s partner is a woman, she may be worried about sharing this with you as you have assumed she is straight.

In both these instances, using gender neutral language – “what did they say?”, or “do you have a partner?” ensures that you aren’t making sexist, or heterosexist, assumptions.

It also often helps avoid embarrassment and awkwardness if you use gender neutral language.

For example, if you are on the phone to someone with a deep voice whilst at work and need to ask a colleague a question about their enquiry, and say “there’s a man on the phone who needs to know…” you may hurt or upset that person, who isn’t a man.

Instead, you could simply say “the person who has called needs to know…” or “this customer needs to know…” and this ensures that you aren’t making assumptions about the person’s gender based on their voice.

Choices about language don’t need to be one-size fits all. Sometimes gender neutral is better, sometimes expanding and including is.

What do you mean when you say someone is “living as” a man, woman, or non-binary person?

We understand that for the majority of the population, the idea of “living as” a woman or man may sound strange – you do not live as those things, you simply are them. Trans people, however, often have to take specific steps to ensure that they are able to live in line with their identity, that aren’t required to be done by other people.

The types of things that trans people do in order to live as women, men, or non-binary people are; changing their name, asking other people to use pronouns, titles, and other language about them that reflect their gender, updating their day-to-day documents to reflect their gender, and asserting to people, both those they have existing relationships with and to new people, that they are a man, woman, or non-binary person.

As well as these social aspects of living in their gender, some trans people may also make physical changes to their bodies, such as taking hormones or undergoing gender reassignment surgeries. Not all trans people do this. This may be because they feel as though they are able to be treated respectfully in their gender through social changes alone, because they have other medical conditions which mean they are unable to do so, or because they are planning to do so but have encountered delays or difficulties.

If trans people didn’t do any of the above things, many of them would continue to be treated in line with their biological sex characteristics at birth. Others would have no way of knowing that their identity was different, and would assume that they were happy to be seen as the sex they were assigned at birth. When we talk about “living as” a man, woman, or non-binary person, we are referring to those steps trans people take to try and move through the world and be treated by others in a way that aligns with their gender. By taking these steps, trans people are then either seen by others in the way they wish to be seen, or at the very least, are understood as being trans and wanting to be seen differently.

Trans people take these steps to live as men, women, or non-binary people due to their deeply felt sense of who they are. Many trans people have spent a very long time thinking about and exploring their gender, and deciding whether they need to take steps to change how they live in the world. Some trans people may be aware of their identity, but not yet ready to share this with or express it to others. Under current proposals, to be eligible to apply for legal recognition of their gender a trans person would need to be living as that gender. This is because an improved process of self-declaration will still include signing a statutory declaration, a legal oath, saying that you are living in your gender and intend to do so until death. Intentionally making a false statutory declaration is a serious crime.