Gender Recognition Reform (Scotland) Bill – Submission

My written submission to the Equalities, Human Rights and Civil Justice Committee of the Scottish Parliament on 15 May 2022.

The Gender Recognition Reform (Scotland) Bill changes the process to get a gender recognition certificate (GRC). A GRC is a certificate that legally recognises that a person’s gender is not the gender that they were assigned at birth, but is their “acquired gender”.

The Equalities, Human Rights and Civil Justice Committee gathered views in response to the statements in italics. My submission follows.

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The removal of the requirement for a medical diagnosis of gender dysphoria and supporting medical evidence.

Legal gender recognition has a profound impact on an individual, their status under the law, and their relationships with other people. It creates a bizarre anomaly where the individual’s legal sex is different to their biological sex. This is not a process that should be considered lightly, and third-party gatekeeping is necessary to ensure that it available to those who need it, without drawing in anyone doing it on a whim and others seeking it in a futile attempt to address other mental health conditions. Medical evidence provides that essential gatekeeping; it also gives the process credibility and maintains public confidence in transgender rights.

I am a transgender person who transitioned in 2012. I regret deeply the campaign for gender self-identification that has damaged public confidence in transgender rights and impacted negatively on the acceptance of transgender people in society. Legislation that establishes self-identification in law risks further damaging that public confidence, and thus having a deleterious impact on transgender people.

At the same time, it risks leaving those who have done it for the wrong reasons in a legal limbo, where their social presentation remains permanently incongruent with their legal status as men or women.

Provisions enabling applicants to make a statutory declaration that they have lived in the acquired gender for a minimum of three months
(rather than the current period of two years) and that they intend to live permanently in their acquired gender.

As a transgender person, I do not see how that declaration can have any meaning without a clear legal definition of what it means to live in the acquired gender. No attempt has been made to draft any definition as far as I am aware.

While the wording, “living in the acquired gender” has been present in UK legislation since 2004, the shorter time period leave those doing this for the wrong reasons especially vulnerable. It is easier to persuade yourself that your psychological distress is linked to gender for three months than it is for two years.

Whether applications should be made to the Registrar General for Scotland instead of the Gender Recognition Panel, a UK Tribunal.

It would seem strange to duplicate the administration of the UK-wide process, especially when the costs of the process are not expected to be passed on to the applicant. At a time when public funds are under extreme pressure, this seems to be unnecessary expense.

Proposals that applications are to be determined by the Registrar General after a further period of reflection of at least three months.

I agree with the concept of a period of reflection; it is normal practice elsewhere. For example, between giving notice to marry and a marriage, and in divorce proceedings between decrees nisi and absolute. I would not dispute three months, so long it follows a period of psychological examination that has led to a medical diagnosis of gender dysphoria. Otherwise, three months is far too short. Individuals suffering from undiagnosed or unresolved psychiatric conditions that manifest themselves in gender distress need greater protection from making a hasty and profound error.

Whether the minimum age for applicants for obtaining a GRC should be reduced from 18 to 16.

No. Human beings do not reach cognitive maturity until their mid-20s. The age of majority (18) should be the absolute minimum. Young people aged 16 and 17 are children. They must not be placed in the position of giving consent to such a profound change. They can wait until they are adults.

If you have any comments on the provisions for interim GRCs.

Spouses must continue to be protected from their marriage being changed without their consent. Marriages are a contract between two people. If either person does not want their marriage to be converted from an opposite-sex marriage to a same-sex marriage, then it must be dissolved before a full GRC is issued. There must be an ongoing mechanism for either party to end the marriage. An interim GRC enables that to happen now, and – in the absence of another mechanism – should be retained.

If you have any comments on the provisions for confirmatory GRCs for applicants who have overseas gender recognition.

There should be quality assurance of the process in other jurisdictions, before overseas GRCs are confirmed in the UK. Driving licences are analogous. The UK will exchange foreign driving licences issued in some jurisdictions but not others.

If you have any comments on the offences of knowingly making a false application or including false information.

I am transgender. I do not see how a statutory declaration of feelings can possibly be proved or falsified. As such, legislation to make that an offence seems to me to be unenforceable in practice. Further, if steps are taken to try and enforce it, then transgender people may be victim to vexatious legal claims from people who wish to prevent them gaining a GRC.

If you have any comments on the removal of powers to introduce a fee.

We are used to paying an administration fee to contribute to the cost of government services (for example, registering a marriage or renewing a passport). I do not see why an exception needs to be made for gender recognition, so long as a fee-remission is available to those on means-tested benefits.

If the Bill’s intended policy outcomes could be delivered through other means such as using existing legislation or in another way?

The existing 2004 Gender Recognition Act provides a mechanism for changing legal sex that is apparently compliant with the European Convention on Human Rights. There is no need to change it. Of much greater importance to transgender people is the 2010 Equality Act which protects us from discrimination and harassment. That is reserved legislation so outside be scope of this consultation.

If you have any suggestions for how this Bill could be amended. If so, please provide details.

1. Insert the requirement for medical evidence to maintain credibility and confidence in the process, and protect individuals from making serious mistakes.
2. Raise the minimum age to at least 18 to protect children from making serious mistakes.

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Debbie Hayton

Submission filed on 15 May 2022, and subsequently published by the Scottish Parliament: Response 876080689.