In light of the Scottish Government consultation on proposed changes to the Gender Recognition Act (2004), much debate has arisen over the potential impacts for gender equality efforts and for organisations working solely with women.
To find out how Scotland’s gender equality and gender-based violence sector feels about the changes and what their current policy and practice around trans people looks like, Caitlin Logan at CommonSpace spoke to key national organisations and local service providers.
Those who see trans identity as irreparably conflicting with feminist ideology frequently describe themselves as “gender critical”, and characterise those of us who recognise trans people within their identified gender as having given up the cause and thrown a party for the idea of innate gender differences instead.
I’m here to tell you that this is not so. I, and many other trans inclusive feminists, spend much of our own lives examining and challenging the gender stereotypes and socialisation which shape our realities and place limits on our horizons from birth, and which pervade our media and our cultural and political institutions in a way which leaves no mistaking that women are still viewed as unequal in our society. So, yes, I am gender critical, but no, I do not think this precludes accepting the experience of trans people.
Scottish Trans Alliance Manager, James Morton, wrote in the Edinburgh Evening News:
I was a transgender teenager back when Section 28 still banned teachers from supporting LGBT young people. Alone without role models, I believed being trans was unacceptable. To try to cure myself, I embraced feminism and fought to end gender stereotypes. However, the world and my sense of myself remained gendered despite my best efforts.
After several years of distress and three suicide attempts, in 2001 I finally transitioned from female to male. I didn’t expect to ever be able to find a partner or to be able to live without fear of harassment. But I needed to be true to myself.
That was 17 years ago and I’m so glad I transitioned. Words can’t really do justice to the simple joy and comfort of being seen by others as I see myself. I’m thankful the vast majority of people accept me as a man. Strangers don’t have the right to know what genitals I have under my clothes or what my old name was.
I’m one of the ‘trans activists’ trying to reform the Gender Recognition Act to make it easier for trans people to change the gender on their birth certificates. Some people are unfairly portraying this as unreasonable and harmful, but in fact it would just bring birth certificates into line with how trans people already change their passports, driving licences and other ID at the start of their transition.
Think about the last time you showed anyone your birth certificate compared to when you show your passport, driving licence or bank cards. It really makes no sense to force trans people to jump through more hoops to change their birth certificate than to change their other ID.
I appreciate why some people worry about how trans people’s rights intersect with women’s rights. Gender is not just an aspect of identity; it is a complex social construct with a damaging hierarchy and much of the discrimination and harassment women suffer derives from society’s perceptions of their biological sex characteristics. My trans activism acknowledges this. Trans rights can be sensibly improved without undermining women’s rights and the Scottish Trans Alliance is working in partnership with feminist organisations to ensure that.
The Gender Recognition Act will continue to have exemptions enabling biological sex characteristics to be taken into account where required. For example, sports bodies will continue to be able to set their own transgender rules in order to ensure safe and fair competition. Exemptions exist so gender recognition doesn’t affect sexual offence prosecutions and so previous name and gender can be shared to prevent and investigate crime. Prisons do careful risk assessments of trans prisoners and can hold people who are legally female in the male estate if required for safety.
Single sex service providers will still be able to treat trans people differently where necessary. Nowadays most changing rooms have individual cubicles so nobody can see, or be seen by, anyone else while undressed. As for public toilets, trans people have been freely using them for decades.
So what would reform of the Gender Recognition Act achieve? It could save trans people from being outed by their birth certificates not matching the gender they live in. It could save trans people from experiencing pension, civil partnership and insurance errors regarding their gender. It could make the lives of trans people a little easier without reducing anyone else’s rights.
My life as a trans person in Edinburgh is so much better than I ever dared hope. Gender recognition enables me to be accepted as myself and valued as an equal part of Edinburgh’s diverse population. I want all trans people to have what I have.
National charities LGBT Youth Scotland and Scottish Trans Alliance, along with the national youth commission on gender recognition, say that the proposed changes to the Gender Recognition Act could be vital for young people, but that misconceptions are impairing the debate.
Speaking to CommonSpace, Policy and Research Manager at LGBT Youth Scotland Brandi Lee Lough Dennell said she had concerns that “malicious misinformation” which was apparent in some media coverage or online discussion of the issue could have a negative impact on trans young people.
“When young people see negative depictions seemingly picked up by family, employers, MSPs, whoever, even if it’s one person shouting loudly and it’s not challenged, this has an impact,” she said.
LGBT Youth Scotland has been gathering the views of young people through the LGBT Youth Commission on Gender Recognition, which was established last year as a national youth participation project, and through consultation across its youth groups and online.
One member of the youth commission, Cameron Goymer, highlighted that the reforms to the Gender Recognition Act would not change the current provision of medical transitions for under 18s: “In both Scotland and the UK, the only medical intervention a young person under the age of 16 is hormone blockers. At the age of 16 someone can go onto hormone replacement therapy and at 18 undergo any surgery.”
Lough Dennell also emphasised that this was an area around which misunderstanding had developed, and noted that the Gender Recognition Act “has nothing to do with surgery” and that the age at which any medical intervention is available would not change.
“Any changes to the Gender Recognition Act are not going to change how people are already identifying”, she added.
James Morton, Scottish Trans Alliance Manager, elaborated: “A young person’s birth certificate would only be changed after they’d already changed their name, pronouns and gender in daily life and on their school records. Therefore, it would not affect the timing or likelihood of a young person transitioning. It is purely a fully-reversible change to text on a piece of paperwork.”
Vic Valentine, Scottish Trans Alliance Policy Officer, writes:
Being seen as who you are is important. Whether we want people to see how much we care about them, to understand where we’re coming from, or to recognise that we’ve changed – we have all probably experienced times where people don’t see us how we want to be seen. For many transgender people, this lack of recognition can extend beyond just how we are seen by others, and into the law. Although for most Scots, the gender recorded on their birth certificate will always reflect how they see themselves, for trans people this is not the case. It can cause real pain and distress for trans people to know that even though we may live our lives openly and happily, being seen as who we truly are by friends, family and colleagues, our birth certificate still declares our gender is something else. This is why it’s so important that the Scottish Government is currently consulting on how to reform the Gender Recognition Act 2004, the law that allows transgender people to change the gender on their birth certificate.
At the moment, trans people are required to provide two years’ worth of evidence that they have been living in their gender and intrusive medical and psychiatric reports to a tribunal, which decides whether they can update their birth certificate. Instead, the Scottish Government is proposing moving to a less convoluted statutory declaration system where trans people make a legal oath confirming the gender identity in which they are living and their honest intent to remain doing so until death. Deliberately making a false declaration would be a criminal offence punishable by imprisonment. This change would recognise that trans people know our own identities, and bring Scotland in line with countries such as Ireland, Denmark, Malta and Norway.
The consultation also asks whether to extend this new system of self-declaration to non-binary people. A non-binary person is anyone who feels that their gender cannot be neatly described using the words “man” or “woman”. Instead, we feel outside, between or beyond these categories, and want to have identity documents that reflect our sense of self, rather than being limited to two options that do not reflect who we are. Right now, non-binary people are unable to get documents that reflect our deeply felt identities, so we welcome the fact that the Government has included the possibility of recognising all transgender people, not just transgender men and women, in this improved process.
A system of self-declaration will bring the process for changing birth certificates in line with those already used by trans men and women to change their name and gender on other identity documents, such as driving licences and passports. Trans people already can and do use services and facilities that reflect our identity and how we live our lives, and not necessarily the legal gender recorded on our birth certificate. For example, transgender women, who still have male on their birth certificates, have for many decades been using women’s toilets and cubicled changing rooms. When they have genuine need, trans women can access women-only services such as rape crisis centres (everyone, whether trans or not, gets carefully risk-assessed before being accepted into such services). As such, how trans people navigate our day-to-day lives, the decisions we make about where we go, and what services we use, will remain largely the same after the change to the law.
So why bother then, if we can already do so many of these things? Well, that’s simple: to be recognised, in all parts of our lives, as who we truly are.
James Morton, Scottish Trans Alliance Manager, writes:
It’s 100 years since the first women in Scotland won the right to vote. It’s 43 years since equality law began to protect women’s rights to employment and service provision. As a trans man who was assigned female at birth, I deeply appreciate how limited my childhood opportunities and aspirations could have been if not for the feminist movement. Every step towards a fairer Scotland involves huge efforts by feminists and they rightly want to ensure nothing undermines their progress.
For over 10 years, the Scottish Trans Alliance has been working respectfully and constructively with Scotland’s national feminist organisations to ensure that trans equality enhances wider gender/sex equality and that discussion is factual, friendly and diverse.
Individual trans women have been actively part of Scotland’s feminist movement for many decades longer.
Together, Scotland’s trans and feminist movements have grown in our mutual understanding and support of each other. We have found huge common ground in our desire to prevent sexual assault and domestic violence, ensure bodily autonomy and reproductive freedoms and challenge gender stereotypes. There cannot be full trans equality without full equality for women.
Trans people are delighted that so many feminists in Scotland are speaking up in favour of bringing trans people’s birth certificates into line with the self-declaration processes already used for changing gender on driving licences, medical records, passports, bank accounts and employment files. It is time for transgender equality in Scotland to catch up with Ireland, Denmark, Malta and Norway.
Nobody is ever asked to show a birth certificate in order to use a public toilet or changing room so trans people’s use of such services will not be changed by Gender Recognition Act reform.
The Equality Act 2010 already protects trans people from discrimination regardless of whether they have changed their birth certificates. There will be no change to existing special rules for single-sex services that allow a trans person to be treated differently if their particular circumstances make that necessary. Likewise, the Gender Recognition Act’s special exemptions for sport competitions and for the prosecution of sexual offences will remain in place so making it easier to change birth certificates will not affect those important topics.
Scottish Women’s Aid and Rape Crisis Scotland are already trans-inclusive on a self-declaration basis and have sensible procedures in place to uphold safety and dignity for all. It is incorrect to claim that Gender Recognition Act reform is a threat to women’s services.
The vast majority of Scots appreciate trans people are a harmless and vulnerable tiny minority just trying to live safely and authentically. Some people are worried that Gender Recognition Act reform could perhaps have unintended consequences and we believe such concerns can best be resolved through pragmatic discussion. The Scottish Trans Alliance and our partners in the Equal Recognition campaign are happy to help engage with anyone that simply wants to check the proposals for Gender Recognition Act reform are well thought through.
Sadly, there are also a very small but vocal number of people who are trying to use the proposed Gender Recognition Act reform as an excuse to demonise trans people and roll back existing trans rights.
Far from being silenced, they are enjoying using large parts of mainstream and social media to publish false claims including that trans people are ‘a cult’; that respecting trans people’s pronouns somehow harms women; that parents are ‘child abusers’ if they let their gender dysphoric teenagers take puberty blockers to gain time to consider their future options. Some of them are calling for trans women to be banned from using women’s toilets – something even Republicans in Texas decided was unacceptably draconian.
Such rhetoric isn’t factual discussion about whether to reform the Gender Recognition Act, it is a clear attempt to destroy trans people’s existing rights and social inclusion. It creates intense fear and distress for trans people and their families.
Trans people need Scottish society, and particularly the Scottish media, to recognise the difference between divisive scaremongering and compassionate reasonable dialogue. Let’s keep public discussions and newspaper coverage factual and friendly like the discussions between Scotland’s trans and feminist organisations already are. There is no reason to claim anyone is being silenced when everyone who wishes to can respond to the current Scottish Government consultation on Gender Recognition Act reform. They can even make their response anonymous if they want.
Stirring up public hostility against trans people is a completely unnecessary and unacceptable behaviour. The decade of positive partnership work between Scottish trans organisations and feminist organisations proves that constructive discussion is the best way forward.
Libby Brooks, the Guardian’s Scotland correspondent, has written a great article about what the Scottish Government and Westminster can learn from Ireland’s successful implementation of legal gender recognition based on self-declaration.
Senator Kevin Humphreys guided the Irish gender recognition legislation through when he became minister of state for social protection in 2014. His advice to politicians in Holyrood and Westminster is simple:
I’d say to them to actually go out and make contact with trans people. One thing I learned was that this is a matter of equality and should be done in full consultation with the trans community.
While political consultation is key, according to James Morton, manager of the Scottish Trans Alliance, another feature propelling reform in Scotland has been the close collaboration between feminist and transgender activists. This has been far less apparent in the debate around Westminster reform.
In Scotland there’s really strong communication between women’s equality organisations, trans equality organisations, politicians and civil servants. Scottish Women’s Aid and Rape Crisis Scotland have become trans-inclusive without any problems occurring, demonstrating that improving trans equality is fully compatible with improving women’s equality, and avoided misunderstandings about legal reform.
England’s equality sector is more fragmented, Morton suggests, and it is harder to communicate with politicians in Westminster.
Sadly, this can create fears and myths about trans equality but constructive discussions are making positive progress. As people look into the facts and speak in depth with trans people, they start to appreciate the need to improve trans equality.
Shon Faye writes in The Guardian about the importance of a united feminism:
Trans women live under the same system of patriarchy as other women. Though our experiences will differ, many of our needs overlap, have the same root and require the same solution. One line of attack I find particularly distressing is that we are trying to “bully” our way into women’s spaces such as refuges and rape crisis services. In their worst form, these arguments imply that I am trying to validate my gender identity by being recognised as a woman in these contexts.
But the reason I want to be able to access women’s spaces is because I now exist as a woman and I am treated as one in a misogynist society. Trans women are at least at the same risk as many other women from gendered violence. The tone of recent media coverage has erased this, suggesting that we simply want affirmation of our identity. I don’t care about affirmation of my identity – I care about whether I could go to a rape crisis centre if I had been raped. Or a domestic violence shelter if a boyfriend beat me up.
Leading LGBTI (lesbian, gay, bisexual, trans and intersex) and women’s equality organisations in Scotland have today welcomed the launch of the Scottish Government’s consultation on improving the Gender Recognition Act 2004.
The LGBTI organisations welcoming the proposals are Scottish Trans Alliance, Equality Network, LGBT Youth Scotland and Stonewall Scotland.
Women’s organisations Close the Gap, Engender, Equate Scotland, Rape Crisis Scotland, Scottish Women’s Aid, Women 50:50 and Zero Tolerance have jointly issued a statement of support for reform of the Gender Recognition Act.
The Scottish Government consultation paper launched today proposes to simplify how transgender people can change the gender on their birth certificates. It is proposed to bring the process for birth certificates in line with that for other identity documents such as passports. Trans people would need to complete a formal legal statutory declaration confirming the gender identity in which they live and their intention to do so permanently for the rest of their life. Passports, driving licences, medical records and employment records are already changed by self-declaration when a person starts living in their gender identity.
James Morton, Scottish Trans Alliance Manager, said:
“We welcome the Scottish Government’s proposals to reform the Gender Recognition Act. The current process to change the gender on a trans person’s birth certificate is a humiliating, offensive and expensive red-tape nightmare which requires them to submit intrusive psychiatric evidence to a faceless tribunal panel years after they transitioned. It makes sense for birth certificates to be brought into line with the self-declaration process already used to change all other identity documents when trans people start living in their gender identity.
Being able to change the gender on their birth certificate to match their other identity documents is important primarily to uphold trans people’s privacy and dignity but also to ensure that their pensions, insurance policies, civil partnerships and marriages are all administered correctly.
We urge the Scottish Government to also provide legal gender recognition for non-binary trans people so that all trans people can have equal inclusion and acceptance within Scottish society.”
Close the Gap, Engender, Equate Scotland, Rape Crisis Scotland, Scottish Women’s Aid, Women 50:50 and Zero Tolerance, jointly said:
“For over a decade, we have engaged in constructive dialogue with our colleagues in the Scottish Trans Alliance, Equality Network, LGBT Youth Scotland and Stonewall Scotland. We do not regard trans equality and women’s equality to be in competition or contradiction with each other. We support the Equal Recognition campaign and welcome the reform of the Gender Recognition Act. Rape Crisis and Women’s Aid in Scotland provide trans inclusive services on the basis of self identification. We will continue to work collaboratively with Scottish Trans Alliance and other equality organisations with the aim of ensuring that new processes are appropriately designed and without unintended consequences.”
Colin Macfarlane, Director of Stonewall Scotland, said:
“This reform is desperately needed as it’s time to move the legislation on from being a long complicated bureaucratic process, which treats being trans as a mental illness. We believe a better Gender Recognition Act is a crucial next step in achieving equality for all trans people and will help reduce the discrimination and abuse that is all too prevalent in our society.”
The Scottish Government also propose to align the age a person can apply to change the gender on their birth certificate with the age of legal capacity in Scotland, which is 16. In Scotland, people can get married, leave school, have a child, vote and join the armed forces at the age of 16. The Children and Young People’s Commissioner Scotland supports the age reduction.
Fergus McMillan, Chief Executive of LGBT Youth Scotland, said:
“LGBT Youth Scotland welcomes the Scottish Government proposals to reform gender recognition law in Scotland. We are working with young people through our youth commission on gender recognition, to bring their views and experiences to the forefront of the consultation. These reforms will allow all trans people, including trans young people, to live with dignity and equality.”
The Scottish Government consultation paper positively acknowledges the importance of respecting the lives of non-binary people who do not identify solely as men or women. It outlines a variety of possible actions that could assist non-binary people, from making small changes to administrative forms through to providing recognition of non-binary people in legislation and service provision.
At the Scottish LGBTI Hustings event during the 2016 Holyrood election campaign, Nicola Sturgeon was asked when she would recognise non-binary gender identities in law, and replied:
“I think we should, and I think we should do it in the next Parliament, and that’s one of the specific things I think we should look to take forward in terms of reviewing the gender recognition law. I think it is no longer, in this day and age, appropriate for people not to have their perfectly legitimate identity recognised legally.”
Vic Valentine, Scottish Trans Alliance Policy Officer, said:
“Reforming gender recognition law to include non-binary people would be a clear indication that our identities are seen as equally valid to those of men and women. This is a vital step towards creating a society in which non-binary people are truly recognised, and treated with dignity and respect in all aspects of our day-to-day lives.”
For further information, please contact James Morton, Scottish Trans Alliance Manager, on 07554 992626 or email@example.com Quotes and photos from, and interviews with, transgender individuals can be provided.
LGBT Youth Scotland has set up a Youth Commission on Gender Recognition to bring young people’s views and experiences to the forefront of the consultation. Members of the group may be available to speak to the press. Contact: firstname.lastname@example.org
The governments that already allow full legal gender recognition through self-declaration include: Argentina, California (USA), Colombia, Denmark, Ireland, Malta and Norway.
The governments that already provide various non-binary identity documents, such as birth certificates or passports, include: Argentina, Bangladesh, California (USA), Canada, Denmark, India, Malta, Nepal, New South Wales (Australia), New Zealand, Oregon (USA) and Pakistan.
Gender recognition reform does not affect sport. Where necessary for fair and safe competition, sports governing bodies will continue to be able to restrict trans people’s participation regardless of whether they have received legal gender recognition.
Trans people have never been required to obtain legal gender recognition in order to use toilets and changing facilities of their gender identity. The Equality Act 2010 will continue to provide single-sex service providers with the ability to treat trans people differently from other service users if that is a proportionate response to achieve a legitimate aim (such as ensuring adequate privacy).
Scottish Trans Alliancewww.scottishtrans.org is Scotland’s national transgender equality and human rights project and is based within the Equality Network, a national charity working for lesbian, gay, bisexual, trans and intersex (LGBTI) equality and human rights in Scotland: www.equality-network.org
The Equal Recognition Campaign aims to bring gender recognition law in Scotland up to international best practice: www.equalrecognition.scot
LGBT Youth Scotlandwww.lgbtyouth.org.uk is Scotland’s largest youth and community based organisation for LGBT young people. We regularly support professionals to meet the needs of gender non-conforming children under the age of 13 and work with a high number of transgender young people under the age of 16 within our services. We run youth groups across Scotland and two national participation projects, including the LGBT Youth Commission on Gender Recognition.
Stonewall Scotlandwww.stonewallscotland.org.uk campaign for equality and justice for gay, lesbian, bisexual and trans (LGBT) people living in Scotland. We work with businesses, the public sector, local authorities, the Scottish Government and Parliament and a range of partners to improve the lived experience of LGBT people in Scotland.