GRA reform in Scotland – 2: the 2004 Act

Scottish trans prideThis post addresses Part 2 of the Scottish government’s consultation document on reform of the Gender Recognition Act 2004. It is the second in a series of posts on the consultation.

I am not a lawyer, so my understanding of all this stuff is very much a lay reading of the text. I skim over some of the details because (a) if you’re into that kind of thing you can read it for yourself and (b) I’d like my posts to be shorter than the consultation document. I freely mix summary and personal comment (though I try to differentiate between the two).

This part of the consultation document sets out what the Gender Recognition Act 2004 (GRA) is and how it applies in Scotland.

In essence, the GRA permits a trans man or woman to have their gender (their ‘acquired gender’ in the wording of the act) legally recognised. Under the terms of the act, it is possible for such a person (provided they meet certain requirements) to obtain a gender recognition certificate (GRC), thus changing the person’s legal sex. The sole effect of this, as far as I am aware, is to enable people born in the UK to obtain new birth and marriage/civil partnership certificates reflecting their new status. (This presumably mitigates against potential discrimination in those rare instances where people need to show these certificates.)

I deliberately wrote ‘trans man or woman’ above. That’s because to be eligible for a GRC under the GRA, (a) you have to be 18 or over and (b) you must be either male or female. In the UK, trans people under 18 and non-binary people can’t yet change their legal sex to match their gender. Parts 4 and 7 of the consultation document address these issues.

Applying for a GRC

To get a GRC, you need to submit an application to a medico-legal ‘Gender Recognition Panel’, providing evidence of having being diagnosed with gender dysphoria (by two suitably qualified people) and of having lived continuously ‘in the acquired gender’ (whatever that means) for the two years preceding the application. You must also make a statutory declaration to that effect. (There are less commonly used alternative options available to some people; see Annex C, p70.) There is a fee for the application (usually £140, though it can be reduced to £30 or waived altogether based on your income).

If you apply for a new birth certificate using their GRC – at least in Scotland; I’m not sure how the situation differs in the rest of the UK – your details are recorded in the Gender Recognition Register (GRR). Unlike the Register of Births, this register is not publicly accessible. As I understand it, the new birth certificate is based on this record, but is indistinguishable from a birth certificate extracted from the Register of Births.

If you’re married, you can also apply for a revised marriage certificate, but I’m not sure from reading the consultation document whether this also involves an entry being made in the GRR. (I suspect the GRR only relates to birth certificates.) If both people in a civil partnership obtain GRCs, they can apply for a revised civil partnership certificate. (Scottish civil partnerships, unlike marriages, are only available to same-legal-sex couples, so one partner can’t change legal sex within a civil partnership unless the other partner changes their legal sex too.)

If you are married and your partner does not consent to your application, or if you are in a civil partnership and your partner is not also applying for a GRC, you can obtain an interim GRC. This doesn’t give you legal recognition of your gender, but can later be used to obtain a full GRC. It can also be used as grounds for divorce. Part 5 (dealt with in a subsequent post) addresses marriage and civil partnership further.

Having heard anecdotes about GRCs from others, it seems that people are divided on whether it is worth applying. Yes, there are some legal advantages, but there are also downsides in that your details are recorded on what is effectively a special register of transgender people (the GRR) – which is perhaps worrying from a civil liberties perspective.

Devolved or reserved?

What isn’t clear to me just now is the extent to which the GRA can be amended by the Scottish Parliament. The document states that some aspects of legislation relating to gender recognition were reserved to Westminster, but, as I read it, other aspects were ceded to Westminster in 2004 for legislative convenience, under what was formerly known as a Sewel Motion. Annex I (p89) appears to provide more detail. There is also mention of devolved and reserved powers in Parts 6 and 7 (to be dealt with in subsequent posts) and in Annex G (p84), on equal opportunities. I think I’ll leave all this messy stuff to the constitutional lawyers. (As I said already, I am not any kind of lawyer.)

On to Part 3: the need for change

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