Gender recognition
Section 35 Order
The Gender Recognition (Scotland) Bill was passed by the Scottish Parliament on 22 December 2022. Read more about the passage of the Bill on the Parliament website.
The Bill was prevented from proceeding to Royal Assent by an order under section 35 of the Scotland Act 1998, made by the Secretary of State for Scotland.
The Scottish Government is confident in the legislation as passed, and maintains that there is a clear and pressing need for gender recognition reform, to bring Scotland into line with international best practice. Read our response to the Secretary of State for Scotland.
The UK Government’s intervention means the Bill cannot be implemented at this time. It remains a Bill passed by the majority of the Scottish Parliament. The Scottish Government has committed not to withdraw it, and to seek to work with an incoming UK Government on progressing the Bill.
Further information can be found in a statement made by Shirley-Anne Somerville, Cabinet Secretary for Social Justice on 20 December 2023.
Overview
To comply with international human rights law, Scotland must have a system for obtaining legal gender recognition. Since 2004, trans people across the UK have had the right to legally change their gender through applying for a Gender Recognition Certificate.
We are committed to reforming the process for obtaining legal gender recognition by removing the current medical requirements and reducing the time that applicants for gender recognition need to have lived in their acquired gender from two years to three months.
The changes would improve the lives of trans people, while ensuring the legislation doesn’t affect the rights and protections that women currently have under the Equality Act.
Actions
The Bill would:
- provide a more streamlined process for trans men and women applying for legal gender recognition
- remove current evidence requirements and reduce the length of time the process takes, both of which can be barriers for trans people
- empower the Registrar General for Scotland to determine applications instead of the Gender Recognition Panel, a UK tribunal
Background
Gender recognition is the process for changing the sex recorded on a UK birth certificate and obtaining a Gender Recognition Certificate. It has been in place for nearly 20 years.
Legal gender recognition is not required for someone to transition socially or medically, or to change the gender or sex recorded on most identification documents, including passports and driving licences.
Under the Gender Recognition Act 2004 there are three routes or ‘tracks’ by which a person can seek legal gender recognition: the standard, the alternative and the overseas tracks.
The standard track is most commonly used. This requires applicants to:
- be aged 18 or over
- to provide evidence of a diagnosis of gender dysphoria and that they have lived in their acquired gender for at least two years
- to make a statutory declaration that they intend to live in their acquired gender for the rest of their life
This process has an adverse impact on people applying for gender recognition, due to the requirement for a medical diagnosis and the intrusion of having their life circumstances considered by the Gender Recognition Panel. We think that trans people should not have to go through this intrusive process in order to be legally recognised in their lived gender. Amending the process will assist in improving the lives of trans people for whom it is important to have that legal recognition, by creating an equally serious but less onerous process.
Parliament’s impartial research service (SPICe) has published a briefing on the Bill.
Bills and legislation
The Gender Recognition Reform (Scotland) Bill was introduced to Parliament in March 2022.
The Gender Recognition Act 2004 sets out the current process for gender recognition, which applies across the UK.
The Equality Act 2010 makes it generally unlawful to discriminate against people who have a “protected characteristic”, as defined under the Act. These protected characteristics include both “sex” and “gender reassignment”. The protected characteristic of gender reassignment is not restricted to those with a Gender Recognition Certificate or who have undergone any specific treatment or surgery.
Consultation
We consulted twice on our proposals. The first was on the principles of reform and then on a draft Bill.
The first consultation opened in November 2017. It received over 15,500 responses, with 60% of respondents agreeing that applicants for legal gender recognition should no longer need to produce medical evidence. Read the consultation analysis.
The second consultation opened in December 2019. It included a draft Bill and draft impact assessments. It received over 17,000 responses. While this second consultation was qualitative, an independent analysis of group responses showed that a majority supported reform. Read the consultation analysis.
These have been two of the largest consultations we have ever undertaken. The consultation analysis gives us a valuable and comprehensive summary of the range of views which we have taken into account.
We published the detailed analysis reports of responses to both consultations, produced by independent researchers. We have also published responses from groups and organisations where permission to publish was granted.
An independent survey conducted for the BBC in February 2022 found that in general, the Scottish public supports reforming the gender recognition process: 57% overall thought it should be easier to get a Gender Recognition Certificate, with 16 to 34 year olds and women being the groups most likely to agree.
More information
We also provided a factsheet giving more information on definitions, the Scottish Government's current position, the Bill itself and other issues related to the Bill.
Contact us
If you would like any more information please email: GRUnit@gov.scot