Simple Guidance for Supporting Gender Recognition Reform in Scotland

You don’t need to live in Scotland to take part. 

This is our simple guide to our approach to the draft Bill. For a fuller guide, we encourage you to read the Scottish Trans Alliance, (a project within the Equality Network (SC037852)) Guide HERE.

Background

We are happy to see the Scottish Government has published its consultation draft bill to reform the ground and procedure for trans people to obtain legal gender recognition in Scotland. 

So what is in the Gender Recognition Reform (Scotland) Bill? (the “Bill”)

The Scottish Government has launched its second consultation on the legal process around gender recognition by publishing the draft Bill and asking for the public to feedback on this proposed way forward.

This piece of legislation is about how trans people are able to update their birth certificate to reflect who they are. This reform does not affect the laws governing how trans people access facilities, services or update any other pieces of identification. 

LINK TO CONSULTATION:

https://consult.gov.scot/family-law/gender-recognition-reform-scotland-bill/ 

THE QUESTIONS:

There are 5 questions within the consultation:

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?

What will Mermaids be saying? We will be calling on the Scottish Government to remove the requirement of having to evidence 3 months living in role.

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

What will Mermaids be saying? We will be calling on the Scottish Government to remove the requirement of a 3 month reflection period. 

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

What will Mermaids be saying? We will be calling fora self-determination model to be available to anyone 16 years old and over. We will also be calling for a system for those under 16 to be one that recognises consent from those with parental responsibility and the legal capacity of the individual themselves. We also believe there should be a system for children and young people who do not live in supportive households. 

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

What will Mermaids be saying? We encourage the Scottish Government to also recognise the need of non-binary people for legal gender recognition. 

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

What will Mermaids be saying? We will be telling the Scottish Government that this Bill will not have a detrimental impact on anyone else’s rights bar that the current draft of the Bill will impact negatively against those who are non-binary and/or those under 16 years old. We need legislation to recognise every trans person, whether they are within the binary or not as well as those who are 16 years old + or below.

Discussion on the Questions’ Issues

Living “in role”

The GRA 2004 required that a person be living “in their gender role” for 2 years before they can apply for a Gender Recognition Certificate. 

This has been reduced to 3 months in the Bill (referred to at q.1), with an additional reflection period of 3 months following this (referred o at q.2). This effectively would reform the 2 year living in role requirement to a 6 month requirement.

Although this is an improvement, we agree with Equal Recognition Scotland that there is no evidence that any waiting time is necessary. Making trans and non-binary people wait before they can apply for a gender recognition certificate (GRA) implies that they have not carefully considered their decision to update their gender records. 

No other process for updating records, no matter how significant a change, requires a reflection period. This level of caution suggests updating gender records is likely to have a negative impact on the person’s life, even though all evidence points to the opposite.

Furthermore, evidencing lived experience in their acquired gender (including and beyond a name change) relies on gender stereotypes, and so requires trans people to conform to those stereotypes in order for them to be recognised for who they are. This is in conflict with the purpose of the Bill which is to provide recognition of Scottish citizens for who they genuinely are. 

Lowering the Age Limit from 18 to 16

In the GRA 2004, gender recognition was only available to anyone 18 and over.  The Bill proposes to lower the age to 16. This is an improvement, but it still fails to recognise those trans and non-binary people under 16 years old, which we believe should have an equal need for gender recognition.

In the 2018 Scottish consultation, it was estimated that there may be up to 15,683 children and young people who would benefit from the age of gender recognition being lowered. Now that it is only going to be for young people between 16-17, that number has reduced to only 1,100.

A self-determination model should be available to anyone 16 years old and over. However, a system should also be in place so that children and young people under 16 have access to legal gender recognition. Mermaids sees this as a system of consent from those with parental responsibility, as well as a process in place for children and young people without supportive households.

Full legal gender recognition can be an important part in supporting a child or young person’s development and social transition as well as their acceptance by society. Every child has the right to being recognised for who they are, so this bill falls short. 

We are calling for the Scottish Government to reform the law to ensure that every trans and non-binary person requiring access to gender recognition, has it. 

Non-Binary Recognition

Unfortunately, there is no recognition of non-binary people in the reformed Scottish bill, despite them making up a sizeable proportion of the people who could benefit from it, and the majority of the country that supports it. 

In the UK Government’s LGBT Survey, 52% of trans people identified that they are non-binary. If this bill doesn’t recognise non-binary people, then the majority of trans people may not be able to access legal gender recognition, which is supposed to be the purpose of the bill!

And the majority of the country supports legal recognition of non-binary people. In the 2018 Scottish consultation, 62 percent said that Scotland should take action to legally recognise non-binary people.

In response to the consultation, Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville stated:

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.

We encourage the Scottish Government to recognise the need of non-binary people for legal gender recognition. Without it non-binary people may feel pressured to wrongly identify as a binary gender (ie male or female) on a statutory declaration and on a day to day level.

Our Full Response

Mermaids will be publishing our response to the new Scottish consultation in the near future. 

If you would like more information, or guidance on how to respond, Equal Recognition Scotland has posted a fantastic guide on their website.