Gender Recognition Act consultation
In a statement to the Scottish Parliament in June, I announced that the Scottish Government would consult on a draft Bill to reform the process by which trans people obtain legal recognition of their lived gender through a Gender Recognition Certificate – a right they have had for 15 years.
We first consulted on these proposals in 2018 and 60% of the 15,500 responses we received supported reform.
Since that consultation, the debate on gender recognition has become polarised, both in Scotland and elsewhere.
Clearly setting out our proposals in a consultation on a draft Bill, I hope will help explain the need for reform, alleviate what I know are concerns, and address any misunderstandings of our proposals.
The reforms do not alter the long standing rights of trans men and women to change gender.
And 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.
Legally changing gender is not new in the UK. For more than 20 years, trans gender people have been able to apply for documentation in their acquired identity, for example a passport or driving licence.
Since the Gender Recognition Act 2004 Act came into force, trans people across the UK have had the right to legally change their gender by applying for a Gender Recognition Certificate – without the need to have surgery or medical treatment.
What the Scottish Government proposes is to amend the way a trans person obtains that legal recognition. This is because the current process is viewed by many wishing to apply as demeaning, lengthy and stressful.
Anyone seeking legal recognition will still need to make a legal statutory declaration that they have lived in their acquired gender for a minimum of three months and intend to do so permanently. There will also be a time for reflection of a further three months after the application has been made, meaning that the applicant must have lived in their acquired gender for a minimum of six months for a Gender Recognition Certificate to be given.
The Bill retains the current position that a false statutory declaration is a criminal offence – with a potential punishment of up to two years’ imprisonment and adds a new offence of making a false application.
We are also proposing the Registrar General issues the Certificate rather than the current Gender Recognition Panel which seeks medical evidence.
Changing the system is in line with the approach of a number of other countries, including the Republic of Ireland, Norway, Malta, Denmark and Belgium. Where that has been done, the impact has been positive for the trans community – without a detrimental impact effect on others.
The proposals are intended to increase the rights of trans people and for them to feel respected for who they are – this is not at the expense of any other group.
I will play my part to hold fast to our principle of trans inclusion whilst recognising, protecting, respecting, and advancing the rights of women and girls.
Many of the issues I have seen raised with these proposals are not to do with this draft Bill. Rather they are to do with a misunderstanding of the rights currently in place for trans people, and also the inequality that continues to impact women and girls more generally.
We recognise there are men who seek to abuse women. This is not new and is not just an issue for Scotland or indeed the UK but across the world. And it is not the fault of trans people. It is the fault of abusive men, which is why I am clear the hard won rights and protection in law of women will not be affected in any way by these reforms.
I will continue to be respectful and listen to others and would urge everyone with an interest in this consultation to do the same.
Read and take part in the consultation
Find out more in our factsheet