Publication - FOI/EIR release

Definition of terms in Gender Recognition Reform (Scotland) Bill Consultation: FOI release

Published: 6 Mar 2020

Information request and response under the Freedom of Information (Scotland) Act 2002.

Published:
6 Mar 2020
Definition of terms in Gender Recognition Reform (Scotland) Bill Consultation: FOI release
FOI reference: FOI/202000015418
Date received: 8 Feb 2020
Date responded: 5 Mar 2020
Information requested

You asked for "With reference to the current Gender Recognition Reform (Scotland) Bill Consultation. As a matter of some urgency I request the definitions of terms used in the documents and draft bill, they have not been supplied. Including but not limited to sex, gender, "a person's gender", "acquired gender", "living in acquired gender". Clear, logical, non-circular definitions and explanation of the meaning of terms, and examples."

Response

The terms “sex” and “gender” may be defined differently depending on the context in which they are being used, or how they may be defined in particular legislative provisions. As you request explanation of definitions used in the draft Gender Recognition Reform (Scotland) Bill which is currently the subject of consultation, this provides further explanation as to how the terms or expressions which you identify are used in the draft Bill. The draft Bill proposes to amend the Gender Recognition Act 2004 in various ways, in relation to Scotland. The 2004 Act applies across the United Kingdom.

“Sex” and “gender”

The draft Bill does not propose to define “sex” or “gender” for the purposes of the amendments to the 2004 Act.

Accordingly, section 9 of the 2004 Act would under the proposals continue to apply in Scotland. Section 9(1) provides that: "Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)." Section 9(2) and (3) contain certain exceptions to that provision.

Section 9 of the 2004 Act is at https://www.legislation.gov.uk/ukpga/2004/7/section/9. The section has been in force since 4 April 2005, and it would not be amended by the proposals in the draft Bill.

“The acquired gender”

Currently, section 1(2) of the 2004 Act defines “the acquired gender” for the purposes of the Act, throughout the UK. That definition is available here: www.legislation.gov.uk/ukpga/2004/7/section/1.

Paragraph 9 of the schedule of the draft Bill proposes to amend that definition in relation to Scotland. The effect of the change would be to refer to 3 proposed new section numbers where “the acquired gender” would be used in the 2004 Act, as proposed to be amended for Scotland, in place of the current section 1(2).

In the proposed section 8C(3) of the 2004 Act, “the acquired gender” refers (similarly to section 1(2) of the Act currently) to the gender in which a person is living when an application for a gender recognition certificate in Scotland is made.

In the proposed section 8M(2), which concerns gender recognition obtained elsewhere in the UK, the expression refers to the person’s gender under the law of England and Wales or Northern Ireland following the issue of a gender recognition certificate under that law.

In the proposed section 8N(3), which concerns gender recognition obtained outwith the UK, the expression refers to a person’s gender under the law of the country or territory outside the UK in which a person has obtained gender recognition.

“Living in the acquired gender”

The expression “living in the acquired gender” is not a defined expression in the 2004 Act, nor in the proposed draft Bill for Scotland. The expression is used currently in sections 3A, 3C and 3E of the 2004 Act, which concern alternative grounds for granting an application for a gender recognition certificate. The proposed draft Bill would repeal those sections in relation to Scotland.

The Gender Recognition Panel, which is currently responsible for handling applications for gender recognition certificates, has produced guidance on information it requires to show a person is “living in the acquired gender”. Please see https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/852924/t451-eng.pdf (section 5).

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