Navigating transgender legal rights

Navigating transgender legal rights: Scottish perspectives on gender recognition and family law

The prominence of transgender issues in society challenges the Scottish legal system to remain live to the acute requirements of the LGBTQ+ community in its aim to achieve an inclusive, hybrid legal approach combining both civil and common law.

The Scottish strategy

To enhance the legal rights of transgender people living in Scotland, the Scottish Government has previously sought, and remains committed to seeking, new legislation that will allow someone to self-identify their legally recognised sex.

Some months ago, however, in a move that some regarded as controversial, the UK Government vetoed Scotland’s Gender Recognition Bill. The intended impact of the Bill is to de-medicalise and simplify the process of changing the legal status and therefore the recording of a person’s gender.

If the Bill were to become law, those aged 16 and over would be able to obtain a Gender Recognition Certificate, which would allow them to change their recorded sex on their birth certificate, permit marriage or the forming of civil partnerships in accordance with their affirmed gender and also ensure their death certificate records were in line with their affirmed gender.

The UK Government’s blocking vote was ruled lawful by Scotland’s highest court, though the elevation of the Bill – as passed by a Holyrood cross-party majority in 2022 – would have seen Scotland become the first part of the UK to provide a self-identification system for individuals who seek to legally change their sex.

The blocking has attracted significant opposition. UK ministers’ use of section 35 of the Scotland Act to veto the legislation has perhaps highlighted the flaws in devolution, when the democratic decisions arrived at by Holyrood can be so easily squashed by the UK Government.

A principal reason for the veto, however, is that the Bill, when enacted, would have had a specific impact on the application of existing discrimination laws under the Equality Act 2010 and general equality laws that currently apply throughout the UK.

A legal framework for gender change

The Gender Recognition Act 2004 (GRA 2004) is the UK-wide legal framework providing for a transgender person to have their preferred gender legally recognised. A person’s acquired gender is the gender they perceive themselves to be, rather than their gender at birth.

The GRA 2004 arguably exceeded the minimum legal requirement to comply with the European Convention on Human Rights in many ways and in line with the international legal precedent set in 2002 – whereby the European Court of Human Rights (ECtHR) ruled that not allowing the legal recognition of someone’s gender reassignment was in breach of Articles 8 and 12 of the Convention.

This addressed the right to privacy and the right to marry. The GRA 2004 was passed in the UK to comply with the ECtHR’s ruling. Consequentially, the divorce law also required to be updated.

When the GRA 2004 was first rolled out, a marriage was strictly between a man and a woman only, and since the legal gender change of one party would effectively result in a same-sex couple, the marriage had to be dissolved first.

In this situation the married applicant would be eligible for an interim Gender Recognition Certificate which could then be used as grounds to void the marriage.

This was the critical provision of the GRA 2004, as those aged 18 years or over are permitted to apply for a Gender Recognition Certificate to effect the status of their legal gender. This is done by applying to the Gender Recognition Panel. If successful, the law then recognises that person to be of their acquired gender and as a result, they can obtain a new birth certificate to reflect their new gender.

Marriage between same-sex couples is now allowed and legally recognised in Scotland under the Marriages and Civil Partnership Act (Scotland) 2014. As such, dissolution of the marriage is no longer required and the marriage can continue with the consent of both parties. Irrespective of the progression of same-sex marriage in the eyes of the law, the GRA 2004 is yet to adapt to the realities of modern families.

Steps to divorce

However, Scots law remains comparatively progressive, so should one party to the marriage withhold consent then Scots law provides for divorce to be sought on this ground alone.
Currently in Scotland, there are only two applicable grounds for divorce. The most common is to establish that the marriage has broken down irretrievably. The other is where an interim Gender Recognition Certificate has been issued to one of the parties after the date of the parties’ marriage.

In practical terms, the GRA 2004 allows that person to obtain an interim Gender Recognition Certificate first of all. That then allows them or their spouse, should they object, to apply for a divorce or dissolution within six months of receipt of the interim certificate. Thereafter, once Decree of Divorce – or Final Order, should it be a civil partnership – has been granted, they will then automatically be issued with the full Gender Recognition Certificate.

The law requires specific criteria to be satisfied prior to issuing an interim certificate. The current criteria are:

• The applicant currently lives and has lived as the intended new gender for the previous two years and has the intention to live in their new gender for the rest of their life.

• The applicant has experienced gender dysphoria – a term that describes a sense of unease that a person may have because of a mismatch between their biological sex and their gender identity.

• The applicant can satisfy the above with medical reports supporting the position.

On attainment of the interim certificate and subsequent Decree of Divorce, the court in Scotland will proceed to issue a certificate of complete gender recognition, which will enable the applicant to amend public registers and enter into marriage or civil partnership under their newly recognised gender.

Modern family law

While it is encouraging that transgender issues are, rightly, gaining recognition in law, many would welcome a further change to the existing laws, especially in family law matters. There is a concern that our legal system is not keeping pace with the modern understanding of a family.

For example, the approach to legal gender in Scotland can have an impact on transgender families, as when a person’s legal gender changes, their legal status as parent of their child does not and the birth registration system continues to record the gender of a child’s parent based on the gestational parent. In more applicable and relatable terms, however, the concept of parenthood is much more flexible and there is no exclusive focus on genetics in decisions affecting a child’s welfare.

Further, the issue of gender dysphoria among children remains contentious, both in Scotland and globally. The Scottish Government has indicated that children should be supported to socially transition – for example, by providing guidance on children changing their names on their school records.

However, this guidance includes circumstances where this could be withheld from a parent. For family lawyers, this casts up the extent to which conflict may arise between what the law provides and the responsibilities and rights of parents.

Future reforms?

Meanwhile, the Scottish Government continues its pursuit of further laws and changes to address what it considers restrictive laws and conditions. Commitments have been made by some in Holyrood to continue pushing for reformative legislation by, for example, reducing the two-year time period currently required by the panel for an interim certificate to six months; and lifting the requirement for a medical diagnosis or medical report in support of the application.

The Scottish Government has recommitted to the legislative changes but the new First Minister of Scotland, John Swinney, has declined to confirm whether or not he would open up discussions with any future Labour government on the Gender Recognition Reform Bill. He said he would “wait and see” what the political landscape was like.

The GRA 2004 is an important step in the recognition of legal rights, but what seems clear from the ongoing commitment to legal modifications – such as the Scottish gender self-ID reforms – is that there will be a continuing spotlight on transgender family law issues in the coming years.

Written by Molly Somerville, a Senior Solicitor at Complete Clarity Solicitors and Simplicity Legal