FOI reference: FOI/18/01666
Date received: 15 June 2018
Date responded: 10 July 2018
Data on the Scottish Government's "adoption and promotion of the Yogyakarta Principles (original Plus 10)", described in the Scottish Government's consultation on reform of the Gender Recognition Act 2004 (the 2004 Act) as embodying best practice.
You asked that this include:
full details on the person and directorate responsible;
full details of the Scottish Government's due process for the adoption of such principles;
details of the expert academic, intellectual and legal review process; and
details of when and where and by whom these Principles were debated, discussed and adopted.
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. This is because the Scottish Government has not "adopted and promoted" either the Yogyakarta Principles as originally published in 2006 or the Yogyakarta Principles plus 10.
The consultation explains at paragraph 3.08 that the Yogyakarta Principles are "non-binding" and that they: "set out existing international human rights law and principles, as the authors believe they should be applied to the treatment of lesbian, gay, bisexual and transgender people" (http://www.gov.scot/Publications/2017/11/5459/347288)
Scotland, as part of the UK, is party to a number of international human right treaties covering civil, political, economic, social and cultural human rights. These treaties are binding as a matter of international law and the Scottish Government is committed to respecting, protecting and fulfilling all of the human rights obligations set out in relevant treaties. Domestic legislation also addresses human rights and statutes such as the Human Rights Act 1998 (http://www.legislation.gov.uk/ukpga/1998/42/contents) ensure that internationally-recognised human rights have effect as part of the law of Scotland. The Human Rights Act implements the European Convention on Human Rights (https://www.echr.coe.int/Documents/Convention_ENG.pdf)
The Scottish Government expressed the view in the consultation that the Yogyakarta Principles, in particular Principle 3 (right to recognition before the law), embody best practice in relation to legal gender recognition processes permitting trans people to seek legal recognition in the gender in which they live.
The consultation proposes that Scotland should adopt a self-declaration process for legal gender recognition to replace the existing arrangements under the 2004 Act. The consultation sought the views of respondents on this proposal and related matters, including whether they agreed or disagreed with the adoption of a new legal gender recognition process in Scotland. The responses to the consultation are currently being analysed and considered, and an analysis report will be published later this year. You mentioned the Yogyakarta Principles plus 10. The Scottish Government consultation was published on 9 November 2017 at https://www.gov.scot/Publications/2017/11/5459
The Yogyakarta Principles plus 10 were published later: please see this press release: http://yogyakartaprinciples.org/principles-en/press-release/
References to the Yogyakarta Principles in the Scottish Government consultation are to the Principles as published in 2006.
As the Scottish Government has not adopted or promoted the Yogyakarta Principles, this response instead provides you with information about the development of the consultation.
Some of the information provided in this response is available from the consultation which is published on the Scottish Government website at https://www.gov.scot/Publications/2017/11/5459
There is also information on Citizen Space (the Scottish Government's on-line platform for consultation responses) at https://consult.gov.scot/family-law/review-of-the-gender-recognition-act-2004/. Under FOISA we do not have to give you information which is already accessible to you. Nonetheless, the responses below include such information. If you do not have internet access to obtain the information from the websites listed, then please contact me again and I can send paper copies to you.
1. Data on the Scottish Government's adoption and promotion of the Yogyakarta Principles (original Plus 10).
This consultation followed on the Scottish Government commitment in Action 13 of the Fairer Scotland Action Plan (http://www.gov.scot/Publications/2016/10/9964) to reform the 2004 Act so that it is in line with international best practice. Action 13 indicated that a consultation would: "cover establishing new arrangements for dealing with applications for legal gender recognition and the minimum age at which applications for gender recognition could be made".
The consultation was prepared by Scottish Government officials, working for the Scottish Ministers. You may find it helpful to refer to information in this Scottish Government FOI release about the consultation: /publications/foi-17-02964/. There is more information about the Scottish Government consultation process generally at http://www.gov.scot/Consultations/About.
2. Details on the person and directorate responsible.
Officials in the Family Law Team in the Justice Directorate worked with other colleagues in Scottish Government and public sector organisations in preparing the consultation. You can find information about the preparation process in the Scottish Government FOI Release at: /publications/foi-17-02964/. There is more information about the various directorates of Scottish Government at /about/how-government-is-run/directorates/. The content of the consultation was approved by the Scottish Ministers. You will receive a separate response to your other enquiry regarding the provision of a copy of the Justice Directorate organisation chart covering all divisions and teams.
3. The Scottish Government's due process for the adoption of such principles There is information about the processes undertaken in preparing the consultation in the Scottish Government FOI Release at: /publications/foi-17-02964/. More information about the Scottish Government consultation process generally is at http://www.gov.scot/Consultations/About. The content of the consultation was approved by the Scottish Ministers.
4. When and where and by whom were these Principles debated, discussed and adopted This letter contains information about how the consultation was prepared by officials and approved by the Scottish Ministers.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House
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