Draft Gender Recognition Bill released for views

A new gender recognition system based on statutory declarations is not expected to have any adverse impact on women, according to the Scottish Government as it launches a consultation on its draft bill on the subject.

At present those who wish to be legally recognised as of the opposite gender to that on their birth certificate have to go through a process that includes providing two medical reports to the UK's Gender Recognition Panel. Ministers believe that although compatible with European human rights law as it stands, the legislation needs to be kept under review to ensure that it continues to be in line with international best practice, and that the present regime is intrusive and offputting to those who might wish to use it, as well as unduly lengthy.

Concerns have been raised by women's rights groups that allowing self-certification of gender would be open to abuse by men liable to commit offences against women, but the paper states that having looked at various systems in operation in other countries, there is no evidence that the proposed system "would impact adversely on the rights of women".

Under the bill, instead of applying to the panel, applicants would apply to the Registrar General for Scotland, after living in their acquired gender for a minimum of three months (rather than the current two years). After an application has been accepted by the Registrar General, the applicant would have to confirm after a reflection period of three months that they wish to proceed and that they intend to live permanently in their acquired gender. They would still be required to submit statutory declarations, made in front of a notary public or a justice of the peace. It will be a criminal offence to make a false statutory declaration and to make a false application for gender recognition.

The paper seeks views on reducing the minimum age to apply from 18 to 16. The Government does not intend at this stage to provide legal gender recognition to non-binary people, but would establish a working group to consider possible changes to procedures and practice in relation to non-binary people and what can be learned from best practice in other countries.

Regarding the protection of women, the paper emphasises that the Equality Act 2010 allows women only services and allows services to exclude trans women when it is proportionate and in pursuit of a legitimate aim, and this would not be changed by the bill.

"This provision would, for example, allow the operator of a domestic abuse refuge designed for women only to exclude a trans woman from the service if the operator judges that this is a proportionate means of achieving a legitimate aim", it states. "This is likely to involve carrying out a risk assessment."

The paper concludes: "The Scottish Government has carefully considered whether moving to a statutory declaration-based system for obtaining legal gender recognition, as outlined in the draft bill, would impact adversely on the rights of women.

"The key question in this context is very much about whether a change in the system for obtaining legal gender recognition would adversely affect women’s rights. The Scottish Government has concluded that it would not...

"Under the system which the Scottish Government is proposing for Scotland obtaining legal gender recognition will remain a serious step which could not be undertaken lightly."

Equality organisations have welcomed the draft bill. James Morton, Scottish Trans Alliance manager, commented: "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...

"We are very pleased that the draft bill is based on statutory declaration not psychiatric evidence and that it reduces the age for application from 18 to 16. 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."

Click here to access the consultation. The deadline for responses is 17 March 2020.