This post addresses Parts 4, 5 and 7 of the Scottish government’s consultation document on reform of the Gender Recognition Act 2004. It is the fourth and last 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).
I’m throwing everything into this final post, because there are only two weeks left until the consultation closes and I want to get the important points across. I have omitted any comment on the questions raised in Parts 6 (privacy issues; recognition of Scottish GRCs outside Scotland) and 8 (impact assessments). I do have concerns about some of these issues, but I’m not sure what the right answers are.
Children and young people
Minimum age of applicants is covered in Part 4 of the consultation document. Under the terms of the 2004 Act, you have to be at least 18 years old to apply for a GRC.
The document treats 16- and 17-year-olds as a special case, since people who are 16 or over in Scotland can act independently of their parents or guardians in a number of important ways, including getting married or entering a civil partnership, recording a change of name, and voting in Scottish parliamentary and local elections.
Question 5 asks whether we agree with the government’s proposal that the minimum age for GRC applicants should be lowered to include (at least) 16- and 17-year-olds. I can’t see any reason to disagree with this.
For people under 16, though, the government says that ‘there is a careful balance to be struck’ between respecting children’s wishes and ensuring they are protected and cared for. Five options are presented for under-16s:
- No legal gender recognition (other than the gender assigned at birth)
- Application via a court action (raised by a child of 12 or over or a responsible adult)
- Application by a responsible adult
- Minimum age of 12 for GRC application
- Requirement for GRC applicant to demonstrate understanding of consequences
Question 6 asks us to choose between these options, or to suggest alternatives.
Option 1, in my view, is simply untenable: for a young person with a clear sense of their gender identity to have to wait until the age of 16 (or older) to have that legally recognised seems cruel and discriminatory. Option 4, in isolation, is similarly problematic, though it could be combined with option 2 or 3 (application by an adult on the child’s behalf for a child under 12).
I am personally inclined to favour option 3, with no minimum age, ideally along with option 5 as a potential alternative route for children with unsupportive parents or guardians. Any minimum age for legal recognition of gender should apply across the board and must not discriminate against trans children.
Ultimately, I think it’s extremely problematic to assign gender at birth and would argue for removal of this information from birth certificates and other official documentation, but that’s probably beyond the scope of the consultation.
Marriage and civil partnership
Issues relating to Scottish marriages and civil partnerships are covered in Part 5 of the consultation document. (It does not address the issue of marriages, civil partnerships and the like registered outwith Scotland, including those registered elsewhere in the UK.) The relevant aspects of the law as it stands are as follows:
- Without a spouse’s explicit consent, the Gender Recognition Panel can only issue an interim GRC to a married applicant. A full GRC can then be obtained by subsequent application to the sheriff court (or following a divorce).
- The Gender Recognition Panel can also only issue an interim GRC to an applicant who is in a civil partnership. Issuing a full GRC without the civil partnership first being dissolved would effectively create a mixed-sex civil partnership, which is not currently recognised in Scottish law.
- Possession of an interim GRC constitutes grounds for divorce or dissolution of a civil partnership.
Question 7 asks whether a married person should be able to apply for a GRC without their spouse’s consent. It’s arguable that a spouse should at least have the legal right to knowledge of such an application, if not actually having a veto over it, but the individual right to self-identification is more important in my opinion. In any case, given that the only thing currently stopping someone obtaining a GRC without spousal consent is the extra bureaucracy of a sheriff-court process or divorce action, it seems pragmatic to answer yes to this question. (This is in line with the practice in Denmark and the Republic of Ireland.)
For those in a civil partnership who wish to remain together, there is currently the option of converting their civil partnership to a marriage under the terms of the Marriage and Civil Partnership (Scotland) Act 2014. Question 8 asks whether a couple in a civil partnership should instead be allowed to remain in a (mixed-sex) civil partnership if one of them applies for a GRC. I think this depends on whether mixed-sex civil partnerships entered into by other means are also permissible (which I personally think they should be).
Given affirmative answers to both of the preceding questions, interim GRCs would no longer be required. However, they are currently grounds for divorce or dissolution of a civil partnership. The government proposes removing these grounds, on the basis that demonstrable irretrievable breakdown of a marriage or civil partnership already provides sufficient grounds for divorce or dissolution. Question 9 asks whether we agree with the government’s proposal. I would answer yes to this: besides eliminating any need for the bureaucracy of interim GRCs, it would remove the anomalous special case for ending a marriage or civil partnership.
Beyond the gender binary
Non-binary issues are covered in Part 7 of the consultation document. Whereas I was once a trans child and am currently married, I am not non-binary, so my only personal axe to grind here is a desire to support my non-binary friends as best I can.
Non-binary people (those who are neither men nor women – or in the case of children, neither boys nor girls, though the consultation document doesn’t appear to consider non-binary children!) currently have no option for legal recognition of their true gender. The government has identified six options (not mutually exclusive), besides the seventh option of doing nothing at all:
- Changes to forms used by government and public bodies – removing unnecessary requests for sex/gender information; inclusion of non-binary options
- A register of non-binary people, with no legal effect on recognised gender (not recommended by the government)
- Limited changes to identity documents and records that include sex/gender information (specifically passports and driving licences – both reserved matters for the UK government – and NHS Scotland CHI numbers)
- Full legal recognition using self-declaration (with consequent changes to laws regarding marriage, parentage etc. and equality legislation)
- Gradually increased recognition of non-binary people (initially adopting options 1–3 and moving towards full legal recognition)
- Amending the Equality Act 2010 (mostly reserved by the UK government) to protect non-binary people from discrimination (with some costs in terms of providing single-sex facilities where these are currently required)
Question 12 simply asks whether Scotland should take action to recognise non-binary people, and my simple answer is yes, obviously.
Question 13 asks which of the six options (if any) we favour. I hate to see my friends being treated as second-class citizens while other people weigh up the costs to them of any changes, so I strongly favour option 4 – full legal recognition for self-declared non-binary people along with appropriate amendments to the Equality Act 2010 (presumably as in option 6).
I will not address the final question in this part, which asks about any other potential impacts we are aware of.
This Scottish government consultation is timely and very welcome, and I hope that it receives a positive response from the public. The consultation document contains a number of good proposals, which if implemented could reduce the bureaucracy involved in obtaining legal gender recognition, as well as opening this up to children and young people, people in civil partnerships and non-binary people.