Publication of the draft Gender Recognition Reform (Scotland) Bill on 17 December 2019
The Scottish Government has published their draft bill reforming the Gender Recognition Act and public consultation will take place until 17 March 2020. It removes the requirements for medical and psychiatric reports and reduces, from two years to six months, the length of time trans people need to live in their acquired gender before receiving a gender recognition certificate. It reduces the age at which a person can apply from 18 to 16. The full draft bill consultation paper and response form is at: https://consult.gov.scot/family-law/gender-recognition-reform-scotland-bill/ For our guide on how to respond, go to: https://www.equalrecognition.scot/supportthedraftbill
Statement from Cabinet Secretary Shirley-Anne Somerville to the Scottish Parliament on 20 June 2019
Full statement at: https://news.gov.scot/speeches-and-briefings/statement-on-gender-recognition
As members are aware, in 2018 the Scottish Government held a 16 week public consultation. It sought views on the proposal that for applicants for gender recognition, the existing requirements to provide medical information and evidence that they have lived in their acquired gender for at least two years should be removed. Over 15,500 responses were received. 49% of responses came from Scotland. 60% of all responses, and 65% of those Scottish responses, were in favour of reform. However, some groups raised concerns and since the closure of the consultation, additional issues – many not in fact directly related to the Bill’s proposals – have also been raised.
I have taken time to listen to and understand those concerns. I have also heard accounts of the anxiety and trauma the current process causes trans people and the difference that reform of the law would make to their ability to live their lives with dignity and acceptance. I will now set out our proposed way forward. Let me be very clear. The Scottish Government remains committed to reforming the 2004 Act and ensuring the process for trans people to access a gender recognition certificate is in line with international best practice. And, more importantly, that it does not result in unnecessary stress.
However, I am acutely aware of how divided opinion is on this issue and I want to proceed in a way that builds maximum consensus and allows valid concerns to be properly addressed. For that reason, we will not introduce legislation to Parliament immediately. Instead it is my intention to publish a draft Gender Recognition (Scotland) Bill later this year. The Bill will be formally introduced to Parliament only when there has been a full consultation on the precise details contained within that draft bill. This consultation will include draft impact assessments, including a comprehensive updated Equality Impact Assessment, to ensure that all rights are protected in a balanced way. This additional step in the process will, I hope, give parliament and all stakeholders the opportunity to consider and respond to specific proposals. And it will allow discussion to move from the general to the detailed.
Existing requirements in the 2004 Act to provide medical evidence will be removed. However, it is important to stress that the current requirements will be replaced by an alternative statutory process. The term ‘self-identification’ is routinely used but in my view this does not adequately reflects the seriousness, or the permanency, of the process envisaged. As now, applicants will be required to make a solemn statutory declaration that they intend to live in their acquired gender permanently. In addition, applicants will be required to state in this statutory declaration that they have already been living in their acquired gender. Currently applicants for a Gender Recognition Certificate are required to have been living in their acquired gender for a minimum of two years. It is the opinion of the Scottish Government that this should be reduced. Our initial proposal will be for 3 months, but again this will be fully consulted on.
The draft Bill will propose that after an application for gender recognition has been made and has been checked to ensure the necessary information and statutory declaration has been provided, there will then be a mandatory 3 month reflection period before a gender recognition certificate can be granted. At the end of this period, an applicant will need to confirm that they still wished to proceed. So applicants will need to have lived in their acquired gender for at least 6 months before a gender recognition certificate can be granted.
It is and will remain a criminal offence to make a false statutory declaration, the potential punishment for which includes up to 2 years imprisonment. Retaining the requirement for a statutory declaration, being clear a false declaration is a criminal offence, and building in a time for reflection enshrines in law the seriousness of this process. No one should doubt that is a significant undertaking and requires the same level of commitment from the individual as the existing system does.
The draft bill will not propose legal gender recognition for those under 16. Though we will consider further whether the minimum age of applicants should be reduced from 18 to 16.
I do not intend at this time to extend legal gender recognition to non-binary people but we recognise the need to address the issues that non-binary people face. I intend to establish a working group to consider possible changes to procedures and practice and what we can learn from best practice internationally as well as from within Scotland and the rest of the UK.
Letter from Shirley-Anne Somerville on 17th January 2019
James, our manager at Scottish Trans, Tim, our director at the Equality Network, and Colin, the Director of Stonewall Scotland, wrote to Shirley-Anne Somerville to seek reassurances that the Scottish Government are still intending to reform the Gender Recognition Act 2004, after some negative media coverage about their plans.
Below is her reply, that we received on 17th January:
“Dear James, Tim & Colin,
Thank you for your letter of 3 December 2018 asking me to reassure Scotland’s trans communities about the Scottish Government’s commitment to reform of the Gender Reform Act 2004 in line with international best practice, following an article in The Sunday Times on 2 December 2018 suggesting that the Scottish Government may be considering dropping this commitment.
Thank you for drawing to my attention the concerns of trans people around this issue. I appreciate that this may be a difficult and distressing time for them.
The Scottish Government remains committed to reform of the 2004 Act. “Delivering for today, investing for tomorrow”, our Programme for Government 2018-2019 (https://www.gov.scot/…/delivering-today-investing-tomorrow…/) was clear that:
“we will continue work that will enable us to bring forward legislation on gender recognition in the next legislative programme”.
We are considering carefully the consultation outcomes, as we reach decisions on our next steps.
Responses to the Consultation
You can read all of the responses from organisations here (these include responses that are both in support of and against reforming the Gender Recognition Act).
The Scottish Government published an independent analysis of all of the responses to the consultation, which can be read here. They received 15,697 responses, which includes 15,532 responses from individuals. On the key questions:
- 60% agreed with self-declaration and 39% disagreed (for Scottish respondents only, these figures were 65% agreed and 34% disagreed).
- 61% agreed that 16 and 17 year olds should be able to legally change their gender, and 37% disagreed (for Scottish respondents only, these figures were 66% and 32%).
- 59% thought something needed to be done for under-16s (63% of Scottish respondents only). There were mixed views on what should be done, but the two most popular options were parental consent, and applications by a capable child.
- 62% thought something needed to be done for non-binary people, and 33% didn’t think action should be taken (for Scottish respondents only, these figures were 66% and 30%). The most popular option was full legal recognition of non-binary people.
The Scottish Government’s consultation ran from 9th November 2017 to 1st March 2018.
Responses to the consultation were accepted from anywhere in the world. People were able to respond as individuals or as representatives of any size of group or organisation. People were able to tell the Scottish Government to keep their response confidential and/or anonymous.
We answered the key questions as follows:
- Q1. AGREE to self-declaration
- Q5. AGREE to lowering the age to 16 + 17 year olds
- Q6. OPTION 3 parental application for under 16s
- Q12. & Q13. YES, then OPTIONS 1, 3, 4 and 6 for non-binary recognition
Christina McKelvie, Minister for Older People and Equalities, at our Activism & Wellbeing Conference on 10th November 2018
We were delighted to welcome Christina McKelvie, Minister for Older People & Equalities, to our national trans activism & wellbeing conference on 10th November. In her speech, she reaffirmed the Scottish Government’s commitment to reforming the Gender Recognition Act in-line with international best practice:
Programme for Government
The Programme for Government was released on 4th September 2018, and outlines all of the Bills that will be introduced in the Scottish Parliament in the next year. Although the Gender Recognition Bill was not included, there was a commitment to:
“Take forward work on proposed changes to the system for obtaining legal gender recognition, replacing the UK Gender Recognition Panel. We will bring forward legislation on gender recognition in the next legislative programme.”