By Lucy Ashton
National LGBTI (lesbian, gay, bisexual, transgender, and intersex) organisations in Scotland have welcomed the Scottish Government’s Gender Recognition Reform (Scotland) Bill, published today.
Scottish Trans, Equality Network, LGBT Youth Scotland, Stonewall Scotland, and LGBT Health and Wellbeing all agree that the Bill’s proposed reforms will be greatly beneficial to trans men and trans women in Scotland.
The Bill proposes reforms to the Gender Recognition Act, which since 2004 has enabled trans men and trans women to change the sex listed on their birth certificate, currently via a very complicated process.
Many trans people, as well as equality and human rights organisations, have criticised the current procedure as being slow, outdated, and unfair, and say that it falls well below international best practice for legal gender recognition.
When the UK first introduced the Gender Recognition Act in 2004, it was a world-leading piece of legislation. But in the past two decades, many countries and territories around the world have significantly improved their laws, with nine states in Europe alone ahead of Scotland in this area.
The Scottish Government has previously run two public consultations (in 2017/18 and 2019/20) on how the Gender Recognition Act should be reformed. In both of these consultations, the majority of respondents in Scotland supported the proposed reform to simplify the process, and to move to a system of statutory self-declaration.
Responding to the publication of the Gender Recognition Reform (Scotland) Bill, Scottish Liberal Democrat leader Alex Cole-Hamilton, right, said: “The Scottish Liberal Democrats support reform of the existing Gender Recognition Act. The current process is harmful, illiberal and fails to respect the human rights of trans people.
“It is wrong that people still have to hand control of their identity to people who they have never met and it is critical that we establish a simple and compassionate process that supports people to live their lives, free from discrimination.
“As this bill passes through Parliament we need a debate that is respectful and informed, and I have confidence in the solemn scrutiny of Parliament to get this right.”
The Scottish Government’s Bill proposes to make the following key changes:
- Move to a system whereby a trans person makes a formal legal statutory declaration confirming the sex in which they have been living for at least 3 months and their intention to continue to do so for the rest of their life, rather than having to wait until two years after they have permanently transitioned to apply.
- Introduce a 3 month ‘reflection’ period before a gender recognition certificate would be issued (meaning a trans person will have had to live in that sex for over 6 months before being able to change their birth certificate.)
- Remove the current requirement to provide a demeaning psychiatric report containing intrusive details such as what toys trans people played with as children, their sexual relationships, and how distressed they were before transitioning.
- Remove the current requirement to provide an invasive medical report describing any hormonal or surgical treatment they are planning or have undergone, or confirming they do not intend to undergo such treatment.
- Allow 16 and 17 year olds to apply for a gender recognition certificate.
The national LGBTI groups say these are very important reforms. The current requirements stigmatise trans people by linking legal recognition of who they are to a psychiatric report, and deny them their right to privacy over personal choices they have made about medical treatments. Because they cannot currently apply until two years after they have been permanently living in their transitioned sex, trans people are currently at risk of discrimination or harassment whenever they need to use their birth certificate to prove their identity.
Trans people can already change their name and sex on identity documents such as passports and driving licences, and can access a wide range of single-sex services and spaces without a gender recognition certificate. The reform will not affect this.
In their manifestos for the 2021 Scottish Parliament elections, the Scottish National Party, Scottish Labour, Scottish Greens, and Scottish Liberal Democrats all committed to reforming the Gender Recognition Act. This means 97 MSPs (75% of the total 129 MSPs) were elected on commitments to pass this Bill.
Even with the welcome positive change proposed in these reforms, there are still many further improvements to the Gender Recognition Act that LGBTI orgnaisations say could be made, to make Scotland a world leader in trans rights. For example, the reforms do not include any provisions for the legal recognition of non-binary people, which many places around the world have done successfully, including Malta and Iceland.
Scottish Trans, Equality Network, LGBT Youth Scotland, Stonewall Scotland, and LGBT Health and Wellbeing are calling for the debate on this bill to be conducted respectfully and without personal abuse. They are asking all MSPs to support this Bill as an important step forward to improving the lives of trans men and women in Scotland.
Vic Valentine, Scottish Trans Alliance Manager, said: “We welcome the proposals in this Bill, that would see a massive improvement in how trans men and trans women in Scotland are able to be legally recognised as who they are. The current process is difficult, stressful and expensive, and it reinforces harmful stereotypes about trans people: that who we are is a mental illness, and that our choices about our bodies are not our own to choose to share with others. While the proposals fall far short of a law that would enable all trans people in Scotland to be legally recognised as who we are, this important step forward is one that we hope that all MSPs across the Chamber can support.”
Transwomen Sarah and Patricia, who are currently transitioning.
Sarah, a 66 year old trans woman, said: “These changes would mean so much to me. I am a woman. It’s who I am, to my core. It’s how I’ve lived most of my adult life, how I am seen by friends, and how I have been loved. To know for so many years that that has not been, and could not be, recognised, has been painful. I hope that these reforms will pass, so that who I really am, and not who I might have been, can finally be legally recognised.”
Patricia, a 25 year old trans woman, said: “Despite what others might say, I am a woman. As such, all of my identity documents, including my passport and driver’s licence, have an ‘F’ printed on them. I’ve been transitioning for almost half a decade now, and in everyday situations, whether out in public or at work, people treat me as a woman. I just want to live my life in peace, and for my privacy to be respected. Reforming the Gender Recognition Act will make a real difference to transgender people’s lives and ensure that, unlike me, future applicants won’t have to put up with years of having a birth certificate that doesn’t reflect who they are.”
- The Scottish Government’s Gender Recognition Reform (Scotland) Bill can be found at: https://www.parliament.scot/bills-and-laws/bills/gender-recognition-reform-scotland-bill The Gender Recognition Act 2004 allows trans people to change the sex recorded on their birth certificate. However, the procedure [according to some people] is intrusive and humiliating, and is not available to people under 18 or to non-binary people. In their 2021 manifestos, the SNP, Labour, Greens and LibDems all committed to reforming the Gender Recognition Act. The Scottish Government has twice consulted publicly on proposals for reform, from 2017 to 2018 (consultation document and analysis) and from 2019 to 2020 (consultation document and analysis)