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Scottish Government publishes consultation Gender Recognition Reform Bill

Holyrood

Scottish Government publishes consultation Gender Recognition Reform Bill

The draft bill will reform the UK-wide Gender Recognition Act of 2004 in Scotland, which allows trans people to obtain a gender recognition certificate

The Scottish Government has published a draft bill which aims to simplify the process for trans people obtaining a Gender Recognition Certificate (GRC).

The draft bill will reform the UK-wide Gender Recognition Act of 2004 in Scotland, which allows trans people to obtain a GRC by applying to a tribunal called the Gender Recognition Panel.

The Gender Recognition Reform (Scotland) Bill proposes removing the current requirement for people to apply to the UK Gender Recognition Panel and drops the need for applicants to provide medical or psychiatric evidence of a diagnosis of gender dysphoria.

The Gender Recognition Reform (Scotland) Bill suggests retaining the requirement for people to make a legally-binding declaration that they have been living in their acquired gender for three months and intend to do so permanently.

The bill also introduces a minimum three month “period of reflection” between applying for a Gender Recognition Certificate (GRC) and having confirmation.

This means applicants must have been living in their acquired gender for at least six months before getting legal recognition.

People aged sixteen and over would be allowed to apply under the proposed changes, instead of having to wait until they were 18.

Passports, driving licences, medical records and employment records are already changed by self-declaration when a person starts transitioning.

Leading LGBTI organisations including Scottish Trans Alliance, Equality Network, LGBT Youth Scotland, Stonewall Scotland and LGBT Health and Wellbeing welcomed the new draft bill, describing it as a “step in the right direction”.

James Morton, Scottish Trans Alliance Manager, said: “The current process to change the sex on a trans person’s birth certificate is a humiliating, offensive and expensive red-tape nightmare which requires them to submit intrusive psychiatric evidence to a faceless tribunal panel years after they transitioned.”

But the organisations argue the bill does not go far enough.

Morton added: “However, we are disappointed that the Scottish Government has chosen not to include under 16s or non-binary trans people in the draft bill. We urge the Scottish Government to expand the bill so that all trans people can have equal inclusion and acceptance within Scottish society.”

Dr Mhairi Crawford, Chief Executive of LGBT Youth Scotland, said: "LGBT Youth Scotland welcomes today’s announcement and are pleased that transgender young people over 16 are included in the draft bill.

“We support the proposed changes to enable 16 and 17 year olds to change their legal paperwork to align with their gender identity, recognising trans young people’s right to privacy and to be protected from discrimination. In Scotland, 16 and 17 year olds are allowed to vote, leave school, get married and have children.

“They can already change the sex on their passports and education records. It makes little sense to deny them the protections that updating their birth certificate affords them.

“We share young people's disappointment that there is no inclusion of non-binary people in this draft bill and no process for under 16s who wish to obtain legal recognition of their gender.

“We do, however, recognise that progress takes time and regard today’s draft bill as a stepping stone to full legal recognition for trans people.

“LGBT Youth Scotland will strive to bring trans young people’s views and experiences to the fore during this consultation and we will work closely with our youth commission on gender recognition as we develop our organisational response."

Organisations such as Rape Crisis Scotland, Scottish Women’s Aid, Engender and Zero Tolerance, have also supported aims to simplify the process for trans people obtaining a GRC. But other women’s organisations have expressed concern over the proposed reforms.

In the introduction to the bill, Equalities Secretary Shirley-Anne Somerville recognised that the debate surrounding the reforms had become “polarised”.

Earlier this year, 15 leading SNP politicians signed an open letter on the issue of women’s and trans people’s rights which stated that “conflating sex with gender identification affects a wide range of policy and service delivery including data collection, education, health and social care, justice and sport” and that the subject deserved to be “properly scrutinised”.

Somerville wrote that “women’s rights and protections will be as strong under this bill as they are today.

“That’s because it does not change in any way the exceptions in the Equality Act 2010, which allow trans people to be excluded when this is a proportionate means of achieving a legitimate aim.

“This means that single sex services are protected as are single sex employment rights and health services.

“Those exceptions are very important and the Scottish Government supports them.”

The Scottish Government previously ran a four month consultation, in 2018.

Over 15,500 consultation responses were received then, two-thirds of which agreed with the proposed reform to a statutory declaration system.

Somerville said: “We are proposing these reforms because the current system is viewed by many wishing to apply as traumatic and demeaning.

“A previous consultation on reform showed a majority in support for our proposals but also some concerns.

“Consulting on the detail of a draft bill and associated impact assessments will, I hope, clearly explain the need for reform and address those concerns.

“There have always been trans people in society and for the past fifteen years they have been able to legally change their gender through obtaining a Gender Recognition Certificate.

“We are proposing to make the current process less stressful whilst continuing to recognise the seriousness of the decision to live your life in a different gender.

“Women’s rights and protections will be as strong under this bill as they are today, as we remain committed to protect, respect, and advance the rights of women and girls.

“We are not proposing to change the Equality Act or the exceptions within it that protect single sex spaces and services.

“Our proposals are in line with the approach taken in a number of other countries, including the Republic of Ireland which has had a similar system since 2015.

“We will carefully consider all responses to the consultation and I urge everyone contributing to do so in a considered and respectful way.”

Lynn Welsh, Head of Legal at the Equality and Human Rights Commission Scotland, said: “This bill offers a welcome opportunity to remove unnecessary practical barriers trans people face in securing legal recognition of their gender identity.

“Nothing in the bill will threaten the continued operation of the Equality Act provisions protecting women-only services and spaces, which recognise the particular needs of women and the need for protection from sex-based violence.”

A consultation on the bill will run until 17 March 2020.

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