This post addresses Part 3 of the Scottish government’s consultation document on reform of the Gender Recognition Act 2004. It is the third 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).
Recognising that the GRA has rapidly become dated and is no longer in accordance with international thinking on transgender rights, the government has proposed a review of the legislation.
In December 2015, the House of Commons Women and Equalities Committee (WEC) issued a report, Transgender equality, which seems to have informed much of the Scottish government’s thinking on the need for GRA reform. The WEC recommended:
‘In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.’ (Transgender equality, ¶45, p14)
Part 3 of the consultation document gives more information on the medical reports that must be submitted in support of a GRC application. These certainly seem to me to be unnecessarily intrusive, including a requirement for one of the reports to detail any planned surgical modification of sexual characteristics.
Internationally, since 2004 there has been a shift towards trans people having the right to determine their own gender:
- The Yogyakarta Principles (2006, extended in 2017) are a (non-binding) set of human-rights principles that international legal experts believe should apply to LGBT people. They emphasise self-defined gender identity and respect for trans people’s dignity and privacy.
- The Parliamentary Assembly of the Council of Europe’s Resolution 2048 (2015) criticises the requirement for medical diagnosis (and even medical treatment in some other European states) on the grounds that this breaches Article 8 of the European Convention on Human Rights. It also calls for self-determination of gender identity.
There are three basic systems of legal gender recognition that are commonly used in other countries: the treatment model (requiring hormone treatment, gender-confirmation surgery or sterilisation as a prerequisite), the assessment model (requiring some form of medical diagnosis and/or other external evidence, as in the GRA) and the self-declaration model (which is, I think, self-explanatory).
The treatment model was ruled out by the UK government when drafting the 2004 Act. The assessment model is at odds with international best practice as encapsulated by the Yogyakarta Principles and Resolution 2048. The Scottish government is therefore proposing a self-declaration approach, as already used, without issue, in Norway, Denmark, Malta, Colombia, Argentina and the Republic of Ireland.
The first four questions
Question 1 in the consultation asks whether we agree or disagree with the basic proposal to adopt a self-declaratory system. My answer to that is a resounding yes. The main lines of argument against this proposal that I’ve heard are based on malicious scaremongering about trans people or suggest that cis (i.e. non-trans) men will change their legal sex to be able to enter women-only spaces. Not only have there been no issues in countries that have adopted self-declaration, but it is frankly ridiculous to suggest that anyone would go through the process of legally changing their sex in order to commit an offence which they could commit just as easily without doing so. When was the last time you needed to show your birth certificate to prove your sex?
The government proposes that legal recognition of ‘acquired gender’ should involve a statutory declaration (similar to the statutory declaration made under oath in Scotland to change a name – so already familiar to a lot of trans people). Question 2 asks whether applicants should have to declare that they understand the consequences of their actions and intend to live in their ‘acquired gender’ until death. This doesn’t seem totally unreasonable to me, though (a) it’s not entirely clear what living in a particular gender entails (other than not fraudulently pretending to have another gender, I suppose), and (b) I have issues with the phrase ‘acquired gender’, which suggests something picked up along the way rather than always there in the background.
Question 3 simply asks whether there should be a limit to the number of times a person can get legal gender recognition, i.e. change their legal sex. There are already limits on the number of times changes can be made to names on birth certificates in Scotland and perhaps it makes sense to adopt a similar system for gender. But I wouldn’t want to restrict things unnecessarily for other people, even if I don’t see myself changing my legal sex repeatedly. There may well be cases where it makes sense for someone to obtain legal gender recognition more than once. My answer to this question, I think, is a don’t know, because I have no particularly strong views one way or the other.
The final question in this part of the consultation document relates to an applicant’s place of birth or residence. The Scottish government’s proposal is that there should only be one way of applying for a GRC (and that the alternative ‘tracks’ outlined in Annex C, p70, in particular for overseas applicants, would no longer be available). Question 4 asks whether the self-declaration system should be open to anybody in the world, or only to people who were either born or adopted in Scotland or are resident in Scotland. Since the proposal is that anyone who has had their gender recognised in another country would automatically have their gender recognised in Scotland, the more restrictive option seems to make sense here. (This is also the approach taken in the Republic of Ireland, for instance.)