Gender Recognition Reform (Scotland) Bill: A consultation

Page 1 of 5

Closes 17 Mar 2020

Questions

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?

The current system for obtaining legal gender recognition in the UK

3.01. The GRA is UK wide legislation permitting a person aged at least 18 to make an application for a GRC. Applications are handled by the Gender Recognition Panel (“the GRP”), a UK Tribunal. Successful applicants receive either an interim GRC, which does not give legal recognition, or a full GRC which does give legal recognition. This process has been place since 2005.

3.02. Under the GRA there are three routes or “tracks” by which a person can seek legal recognition of their acquired gender: the standard, the alternative and the overseas tracks.

3.03. The standard track is most often used by applicants. The standard track can be used by applicants who:

  • have been diagnosed with gender dysphoria (section 2(1)(a) and section 25 of the current GRA);
  • have lived in their acquired gender throughout a period of two years immediately prior to their application (section 2(1)(b)); and
  • intend to live in their acquired gender for the rest of their life (section 2(1)(c))

3.04. Applicants under this route must provide two medical reports to the GRP. One from a registered medical practitioner or registered psychologist who is practising in the field of gender dysphoria must include details of the diagnosis (section 3(1) and (2)). The second report must be from a registered medical practitioner and must include details of any treatment the applicant is receiving and whether they have undergone, are undergoing, or planning to undergo surgery to modify sexual characteristics (section 3(1) and (3)).

3.05. Published guidance13 confirms that, along with their application, applicants must provide documentary evidence that they have lived in their acquired gender throughout the period of two years prior to their application (section 3(6)(b),(c)).

3.06. Applicants under the standard track must also make and submit a statutory declaration with their application that they meet the conditions of having lived in their acquired gender for the required two year period and intend to continue to do so until death (section 3(4)). The statutory
declaration must also state whether or not the applicant is married or a civil partner (section 3(6)(a)).

Living in the acquired gender for two years

3.30. Respondents to the consultation specifically provided additional comment on the issue of the current requirement to provide evidence of living in the acquired gender for two years prior to applying for a GRC. This was seen as very difficult for some or as risking trans people being exposed to
prejudice or verbal or physical abuse. Reasons given included problems created when an individual’s personal documents are inconsistent, or do not match the gender presented, meaning that they are forced to reveal their status when they would not otherwise choose to do so.

The proposed new system for obtaining legal gender recognition

4.02. In summary, the Scottish Government’s proposals are: The removal of current medical requirements when applicants are seeking legal gender recognition;

  • The removal of the need to apply to the GRP. Instead, applicants would apply to the Registrar General for Scotland (“the Registrar General”) who already has a number of existing functions under the GRA; 
  • Applicants must either (a) have been born or adopted in Scotland or (b) be ordinarily resident in Scotland;
  • Applicants must have lived in their acquired gender for a minimum of 3 months (rather than the current 2 years) before submitting an application for gender recognition;
  • After an application has been accepted by the Registrar General, the applicant would have to confirm after a reflection period of 3 months that they wish to proceed;
  • Applicants would have to confirm that they intend to live permanently in their acquired gender;
  • Applicants would still be required to submit statutory declarations, made in front of a notary public or a justice of the peace; and
  • It will be a criminal offence to make a false statutory declaration in relation to gender recognition and to make a false application for gender recognition.

4.03. The Cabinet Secretary also announced in her Parliamentary statement that the Scottish Government:

  • does not intend to allow people under 16 to apply for legal gender recognition and would seek views on reducing the age from 18 to 16;
  • intends to seek views on what support is needed for children and young people who are uncertain of their gender identity;
  • would prepare guidance on supporting trans pupils in schools. The aim is to set out how to protect and promote the rights of trans pupils and other pupils in schools;
  • would set up a working group on sex and gender in data, including consideration of disaggregation of data by male and female;
  • would develop guidance to make sure that policy makers and service providers understand better how to ensure that the rights of women and trans people can be collectively realised; and
  • does not intend at this stage to provide legal gender recognition to nonbinary people and would establish a working group to consider possible changes to procedures and practice in relation to non-binary people and what we can learn from best practice internationally, in Scotland and from the rest of the UK.

The draft Bill

4.04. The draft Bill is at Annex C and detailed Explanatory Notes are at Annex D. Impact Assessments are also attached as annexes.

4.05. The draft Bill does not repeal the GRA for Scotland and replace it with a new Act. Instead, it amends the GRA to introduce the proposed new system for Scotland for obtaining legal gender recognition. The Scottish Government does not consider there is a need to repeal the GRA. What is
changing is the way in which legal gender recognition is obtained: the rights and responsibilities are not changing.

4.06. Key provisions of the Bill are outlined in the table below:

Section in Bill

Provision

2

An applicant must be at least 16 (see question below) and either have been born in Scotland or adopted in Scotland or be ordinarily resident here. Section 11 gives powers to the Registrar
General to make regulations on applications.

3

Once the Registrar General has considered the application, the Registrar General cannot determine it until a 3 month reflection period has passed and the applicant has confirmed in writing that they wish to proceed. (This confirmation is known in the Bill as the
“notice of confirmation”).

4

The Registrar General must grant the application if it includes a statutory declaration by the applicant that the applicant is at least 16; was born or adopted in Scotland or is ordinarily resident here; has lived in their acquired gender for at least 3 months; and intends to live in their acquired gender permanently.

Section 14 makes it a criminal offence to make a false statutory declaration in relation to gender recognition or a false application for gender recognition or a false notice of confirmation after the reflection period has expired.

5 to 7

Makes provision on statutory declarations by the applicant on whether they are married or in a civil partnership and on what type of GRC the Registrar General should issue.

Where the applicant is single, the Registrar General should issue a full GRC.

Where the applicant is married or in a civil partnership and both parties wish to stay in the relationship, the Registrar General should issue a full GRC. In other cases, the Registrar General should issue an interim GRC.

7 Also makes provision on the court issuing a full GRC where the court has granted a decree of divorce or dissolution on the grounds of the issue of an interim GRC and also makes provision on issuing a full GRC on application by a person with an interim GRC.
8 Provides recognition for GRCs issued in England and Wales or Northern Ireland and for gender recognition obtained overseas.
9 Provision on an applicant being able to review and appeal gender recognition decisions made by the Registrar General.
9 Makes provision on applications to the court to quash a GRC on the grounds that the application was fraudulent or the applicant
lacked capacity.
10 Makes provision on correction of administrative errors in GRCs.
12 Makes provision on the Registrar General for Scotland sending a copy of a GRC issued in Scotland to other Registrar Generals in the UK, if this is necessary to update records held by other Registrar Generals.
13 Makes provision on continuity of marriages or civil partnerships after gender recognition.


4.07. Obtaining legal gender recognition would remain a serious step. The Scottish Government considers that requiring people to live in their acquired gender for 3 months; to make statutory declarations; and to go through a period of reflection for 3 months is a balanced and proportionate way of replacing the current system with one that is more respectful of the rights of trans people. As the Cabinet Secretary said in her Parliamentary statement:

“Retaining the requirement for a statutory declaration, making it clear that a false declaration is a criminal offence and building in time for reflection will enshrine in law the seriousness of the process. No one should doubt that it is a significant undertaking, or that it will require the same level of commitment from the individual as the existing system does.”

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?

The current system for obtaining legal gender recognition in the UK

3.01. The GRA is UK wide legislation permitting a person aged at least 18 to make an application for a GRC. Applications are handled by the Gender Recognition Panel (“the GRP”), a UK Tribunal. Successful applicants receive either an interim GRC, which does not give legal recognition, or a full GRC which does give legal recognition. This process has been place since 2005.

3.02. Under the GRA there are three routes or “tracks” by which a person can seek legal recognition of their acquired gender: the standard, the alternative and the overseas tracks.

3.03. The standard track is most often used by applicants. The standard track can be used by applicants who:

  • have been diagnosed with gender dysphoria (section 2(1)(a) and section 25 of the current GRA);
  • have lived in their acquired gender throughout a period of two years immediately prior to their application (section 2(1)(b)); and
  • intend to live in their acquired gender for the rest of their life (section 2(1)(c))

3.04. Applicants under this route must provide two medical reports to the GRP. One from a registered medical practitioner or registered psychologist who is practising in the field of gender dysphoria must include details of the diagnosis (section 3(1) and (2)). The second report must be from a registered medical practitioner and must include details of any treatment the applicant is receiving and whether they have undergone, are undergoing, or planning to undergo surgery to modify sexual characteristics (section 3(1) and (3)).

3.05. Published guidance13 confirms that, along with their application, applicants must provide documentary evidence that they have lived in their acquired gender throughout the period of two years prior to their application (section 3(6)(b),(c)).

3.06. Applicants under the standard track must also make and submit a statutory declaration with their application that they meet the conditions of having lived in their acquired gender for the required two year period and intend to continue to do so until death (section 3(4)). The statutory
declaration must also state whether or not the applicant is married or a civil partner (section 3(6)(a)).

Living in the acquired gender for two years

3.30. Respondents to the consultation specifically provided additional comment on the issue of the current requirement to provide evidence of living in the acquired gender for two years prior to applying for a GRC. This was seen as very difficult for some or as risking trans people being exposed to
prejudice or verbal or physical abuse. Reasons given included problems created when an individual’s personal documents are inconsistent, or do not match the gender presented, meaning that they are forced to reveal their status when they would not otherwise choose to do so.

The proposed new system for obtaining legal gender recognition

4.02. In summary, the Scottish Government’s proposals are: The removal of current medical requirements when applicants are seeking legal gender recognition;

  • The removal of the need to apply to the GRP. Instead, applicants would apply to the Registrar General for Scotland (“the Registrar General”) who already has a number of existing functions under the GRA; 
  • Applicants must either (a) have been born or adopted in Scotland or (b) be ordinarily resident in Scotland;
  • Applicants must have lived in their acquired gender for a minimum of 3 months (rather than the current 2 years) before submitting an application for gender recognition;
  • After an application has been accepted by the Registrar General, the applicant would have to confirm after a reflection period of 3 months that they wish to proceed;
  • Applicants would have to confirm that they intend to live permanently in their acquired gender;
  • Applicants would still be required to submit statutory declarations, made in front of a notary public or a justice of the peace; and
  • It will be a criminal offence to make a false statutory declaration in relation to gender recognition and to make a false application for gender recognition.

4.03. The Cabinet Secretary also announced in her Parliamentary statement that the Scottish Government:

  • does not intend to allow people under 16 to apply for legal gender recognition and would seek views on reducing the age from 18 to 16;
  • intends to seek views on what support is needed for children and young people who are uncertain of their gender identity;
  • would prepare guidance on supporting trans pupils in schools. The aim is to set out how to protect and promote the rights of trans pupils and other pupils in schools;
  • would set up a working group on sex and gender in data, including consideration of disaggregation of data by male and female;
  • would develop guidance to make sure that policy makers and service providers understand better how to ensure that the rights of women and trans people can be collectively realised; and
  • does not intend at this stage to provide legal gender recognition to nonbinary people and would establish a working group to consider possible changes to procedures and practice in relation to non-binary people and what we can learn from best practice internationally, in Scotland and from the rest of the UK.

The draft Bill

4.04. The draft Bill is at Annex C and detailed Explanatory Notes are at Annex D. Impact Assessments are also attached as annexes.

4.05. The draft Bill does not repeal the GRA for Scotland and replace it with a new Act. Instead, it amends the GRA to introduce the proposed new system for Scotland for obtaining legal gender recognition. The Scottish Government does not consider there is a need to repeal the GRA. What is
changing is the way in which legal gender recognition is obtained: the rights and responsibilities are not changing.

4.06. Key provisions of the Bill are outlined in the table below:

Section in Bill

Provision

2

An applicant must be at least 16 (see question below) and either have been born in Scotland or adopted in Scotland or be ordinarily resident here. Section 11 gives powers to the Registrar General to make regulations on applications.

3

Once the Registrar General has considered the application, the Registrar General cannot determine it until a 3 month reflection period has passed and the applicant has confirmed in writing that they wish to proceed. (This confirmation is known in the Bill as the “notice of confirmation”).

4

The Registrar General must grant the application if it includes a statutory declaration by the applicant that the applicant is at least 16; was born or adopted in Scotland or is ordinarily resident here; has lived in their acquired gender for at least 3 months; and intends to live in their acquired gender permanently.

Section 14 makes it a criminal offence to make a false statutory declaration in relation to gender recognition or a false application for gender recognition or a false notice of confirmation after the reflection period has expired.

5 to 7

Makes provision on statutory declarations by the applicant on whether they are married or in a civil partnership and on what type of GRC the Registrar General should issue.

Where the applicant is single, the Registrar General should issue a full GRC.

Where the applicant is married or in a civil partnership and both parties wish to stay in the relationship, the Registrar General should issue a full GRC. In other cases, the Registrar General should issue an interim GRC.

7 Also makes provision on the court issuing a full GRC where the court has granted a decree of divorce or dissolution on the grounds of the issue of an interim GRC and also makes provision on issuing a full GRC on application by a person with an interim GRC.
8 Provides recognition for GRCs issued in England and Wales or Northern Ireland and for gender recognition obtained overseas.
9 Provision on an applicant being able to review and appeal gender recognition decisions made by the Registrar General.
9 Makes provision on applications to the court to quash a GRC on the grounds that the application was fraudulent or the applicant
lacked capacity.
10 Makes provision on correction of administrative errors in GRCs.
12 Makes provision on the Registrar General for Scotland sending a copy of a GRC issued in Scotland to other Registrar Generals in the UK, if this is necessary to update records held by other Registrar Generals.
13 Makes provision on continuity of marriages or civil partnerships after gender recognition.


4.07. Obtaining legal gender recognition would remain a serious step. The Scottish Government considers that requiring people to live in their acquired gender for 3 months; to make statutory declarations; and to go through a period of reflection for 3 months is a balanced and proportionate way of replacing the current system with one that is more respectful of the rights of trans people. As the Cabinet Secretary said in her Parliamentary statement:

“Retaining the requirement for a statutory declaration, making it clear that a false declaration is a criminal offence and building in time for reflection will enshrine in law the seriousness of the process. No one should doubt that it is a significant undertaking, or that it will require the same level of commitment from the individual as the existing system does.”

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

The proposed new system for obtaining legal gender recognition

4.03. The Cabinet Secretary also announced in her Parliamentary statement that the Scottish Government:

  • does not intend to allow people under 16 to apply for legal gender recognition and would seek views on reducing the age from 18 to 16;
  • intends to seek views on what support is needed for children and young people who are uncertain of their gender identity;
  • would prepare guidance on supporting trans pupils in schools. The aim is to set out how to protect and promote the rights of trans pupils and other pupils in schools;
  • would set up a working group on sex and gender in data, including consideration of disaggregation of data by male and female;
  • would develop guidance to make sure that policy makers and service providers understand better how to ensure that the rights of women and trans people can be collectively realised; and
  • does not intend at this stage to provide legal gender recognition to nonbinary people and would establish a working group to consider possible changes to procedures and practice in relation to non-binary people and what we can learn from best practice internationally, in Scotland and from the rest of the UK.

Reducing the minimum age for obtaining legal gender recognition to age 16

4.08. The current minimum age for applying for legal gender recognition is 18 (section 1 of the GRA refers). The Scottish Government considers that this should be reduced to 16.

4.09. There are a number of existing areas in Scotland where people obtain rights at 16. At age 16 you can:

  • leave home without the consent of your parent or guardian;
  • get a full-time job and pay National Insurance;
  • enter into a legally binding contract;
  • consent to surgical, medical or dental procedures and treatments;
  • marry or register a civil partnership;
  • consent to lawful sexual activity;
  • apply for a UK passport on your own behalf;
  • vote in elections to the Scottish Parliament and Scottish local authorities;
  • get a skin piercing;
  • record a change of name officially.

4.10. In recent years, there have been moves to provide more rights at an earlier age (eg voting in Scottish elections is now allowed at 16 rather than 18).

4.11. Reducing the minimum age for obtaining legal gender recognition to 16 would be in line with the school leaving age and with the minimum age for marrying or entering a civil partnership.

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

The draft Bill

4.04. The draft Bill is at Annex C and detailed Explanatory Notes are at Annex D. Impact Assessments are also attached as annexes.

4.05. The draft Bill does not repeal the GRA for Scotland and replace it with a new Act. Instead, it amends the GRA to introduce the proposed new system for Scotland for obtaining legal gender recognition. The Scottish Government does not consider there is a need to repeal the GRA. What is changing is the way in which legal gender recognition is obtained: the rights and responsibilities are not changing. 

4.06. Key provisions of the Bill are outlined in the table below:

Section in Bill

Provision

2

An applicant must be at least 16 (see question below) and either have been born in Scotland or adopted in Scotland or be ordinarily resident here. Section 11 gives powers to the Registrar
General to make regulations on applications.

3

Once the Registrar General has considered the application, the Registrar General cannot determine it until a 3 month reflection period has passed and the applicant has confirmed in writing that they wish to proceed. (This confirmation is known in the Bill as the
“notice of confirmation”).

4

The Registrar General must grant the application if it includes a statutory declaration by the applicant that the applicant is at least 16; was born or adopted in Scotland or is ordinarily resident here; has lived in their acquired gender for at least 3 months; and intends to live in their acquired gender permanently.

Section 14 makes it a criminal offence to make a false statutory declaration in relation to gender recognition or a false application for gender recognition or a false notice of confirmation after the reflection period has expired.

5 to 7

Makes provision on statutory declarations by the applicant on whether they are married or in a civil partnership and on what type of GRC the Registrar General should issue.

Where the applicant is single, the Registrar General should issue a full GRC.

Where the applicant is married or in a civil partnership and both parties wish to stay in the relationship, the Registrar General should issue a full GRC. In other cases, the Registrar General should issue an interim GRC.

7 Also makes provision on the court issuing a full GRC where the court has granted a decree of divorce or dissolution on the grounds of the issue of an interim GRC and also makes provision on issuing a full GRC on application by a person with an interim GRC.
8 Provides recognition for GRCs issued in England and Wales or Northern Ireland and for gender recognition obtained overseas.
9 Provision on an applicant being able to review and appeal gender recognition decisions made by the Registrar General.
9 Makes provision on applications to the court to quash a GRC on the grounds that the application was fraudulent or the applicant
lacked capacity.
10 Makes provision on correction of administrative errors in GRCs.
12 Makes provision on the Registrar General for Scotland sending a copy of a GRC issued in Scotland to other Registrar Generals in the UK, if this is necessary to update records held by other Registrar Generals.
13 Makes provision on continuity of marriages or civil partnerships after gender recognition.
5. Do you have any comments on the draft Impact Assessments?

Impact Assessments

6.01.   In line with usual practice, draft Impact Assessments have been prepared and are attached at the following Annexes:

6.02   The Government would produce final versions of these impact assessments for the Bill once it is introduced into Parliament.

6.03   The Government does not consider that a Strategic Environmental Assessment (SEA) is required as there is no significant impact on the environment. In line with usual practice, the Scottish Government sent a prescreening exemption from SEA to the SEA consultation authorities (the Scottish Environment Protection Agency; Scottish Natural Heritage and Historic Environment Scotland).

6.04   The Government does not consider that an Islands Impact Assessment (IIA) is required. No differential impact on the islands is envisaged.

6.05   In accordance with Parliamentary Standing Orders, the Government would prepare the following Accompanying Documents for the Bill when introduced into Parliament:

  • A Policy Memorandum (this will outline the consultation and the policy underlying the Bill);
  • A Financial Memorandum (this will be based on the BRIA); and
  • Explanatory Notes to the Bill (a draft of these is at Annex D).

6.06   The Government would also prepare a Delegated Powers Memorandum, on powers in the Bill to make secondary legislation such as regulations.