Gender Recognition Reform (Scotland) Bill: consultation analysis

2. Overarching themes

2.1 This chapter draws on comments made across all five questions and focuses on overarching themes, including views on the case for change and the potential impact of the changes proposed.

Concerns about nature of the debate

2.2 One area of shared concern was around the nature and tone of the debate and dialogue associated with trans issues more widely and the proposals in particular. There was a consensus that the debate has become highly polarised and from some respondents' perspective was seen as toxic and underpinned by a culture, and in particular a social media culture, in which people are being, or feel, bullied and harassed by those taking a different view. A Children or Young People's Group commented that young people have the right to take part in the debate and that this means it is especially important that the discussion should be respectful, reasonable and courteous.

2.3 One perspective was that those identifying as trans and/or supporting and advocating for trans rights are being subjected to transphobic abuse, with any delays to changing the legislation fuelling this discriminatory narrative.

2.4 Others suggested that anyone who expresses concerns about the proposed changes, in particular in relation to the rights of women and girls or based on their belief system, is accused of being transphobic with any debate being shut down, including through support for no platforming.

2.5 These differing perspectives on the wider debate sometimes translated into concerns about the approach the Scottish Government is taking to policy development in this area. For example, it was suggested that a second consultation was not required, with the outcomes from the 2017-2018 consultation exercise clear in supporting change, and in particular a move towards self-declaration. It was suggested that the current proposals have been designed to appease those who do not support a move to self-identification or self-declaration and that the Scottish Government has not listened to the concerns and needs of the trans community.

2.6 An alternative view was that the Scottish Government listens primarily to the trans community, but in particular to a group of vocal organisations and individuals who may not necessarily represent the views of the wider trans community. This was sometimes associated with a view that the Scottish Government is not listening to, and engaging sufficiently with, organisations and individuals who have concerns about the impact of the changes on women and girls or who have concerns about the proposals based on their beliefs.

2.7 On these issues, and more widely, many respondents' strength of feeling, anxiety and sometimes hurt was clear. Whilst the remaining analysis acknowledges this strength of feeling, it focuses primarily on the specific issues covered by the consultation and in particular on issues relating to the draft Bill.

The case for change

Those broadly in support of a statutory declaration-based system

2.8 Those who saw a clear and pressing case for change often considered that the current approach is outmoded and discriminatory. For example, the current system – including the minimum 2-year timescale for living in their acquired gender – was described as overly complicated and prohibitively long. The requirement to provide evidence of a medical diagnosis of gender dysphoria and to submit a medical report detailing treatment (such as hormone treatment or surgery) was described as humiliating and invasive. There were also a range of reports connected to difficulties and delays for trans people in accessing diagnostic services, as well as other services including support services.

2.9 There were also particular concerns about the GRP – both in terms of the inappropriateness of a panel-based system and the actual experiences of those whose cases have gone to the Panel. The latter included reports that this experience had been intimidating and/or humiliating. The administrative burden, including in relation to compiling a document-based body of proof, was described as time consuming and onerous. It was also seen as disadvantaging those trans people who may not have access to key documentation, for example because they are homeless or fleeing domestic abuse.

2.10 Both through their own stories and more generally, respondents who supported change spoke of the detrimental impact the current approach is having on trans peoples' health, wellbeing and life chances. Respondents spoke of their own, sometimes lengthy and difficult, experiences of going through the current system, or of their reluctance to apply for a GRC because of concerns or anxiety about the process. There were particular references to the impact on mental health and also to self-harm and risk of suicide. It was suggested that a more straightforward process, with a focus on trust and validation, could have a transformative effect on the mental health and wellbeing of individuals and the wider trans community.

2.11 It was noted that while at present people are able to self-identify their gender for documents such as passports and medical records, this system is not currently reflected in the process of applying for a GRC. Some explained that their own lived experience, sometimes over many years, has not been matched by their key supporting documentation, and their birth certificate in particular. In terms of the types of problems and challenges that can result when someone's birth certificate does not match their lived gender, examples given included:

• Difficulties when applying for further education or employment.
• Difficulties and delays relating to civil partnership or marriage.
• Concern and distress when seriously ill or dying about not being identified and recorded in the right gender and, in consequence, their death certificate not being in the right gender.

2.12 In terms of the underlying principles underpinning any future approach, comments included that:

• The Scottish Government should listen to the views of the trans community and work with them to develop an approach which meets their needs.
• Trans people should be able to obtain legal gender recognition swiftly and in accordance with their own perceptions of gender identity.

Those broadly opposed to a statutory declaration-based system

2.13 Other respondents took the view that the Scottish Government has not provided sufficiently robust evidence to support its case for change. It was frequently argued that the existing system provides important safeguarding measures and that the 2004 Act does not require any amendment. The description in the consultation paper of the current requirements as 'intrusive, demeaning, distressing or stressful' was questioned, and it was reported that the available evidence suggests that the GRP works well.

2.14 Although sometimes accepting that there may be arguments for limited reform, respondents also suggested that the Scottish Government has not made a robust and sufficient case for the changes that are proposed, and it was observed that the consultation paper does not set out any alternatives that have been explored. Rather than seeking to resolve problems with the present system by moving to a declaration-based model, it was argued the Scottish Government should instead seek to improve access to specialist services.

2.15 On a fundamental level, it was argued that the Scottish Government is confusing sex and gender and that, while gender is a social construct, biological sex is an immutable characteristic that cannot be changed. While the 2004 Act was suggested to have been put in place originally as a practical measure to help a small number of people with a rare medical condition, the proposed reforms were seen as a fundamental change that will encompass a group of people that is both much larger in number and much more diverse. As a result, it was suggested that the scale of impacts on women and girls will be amplified, while removal of the requirement for a diagnosis of gender dysphoria, in particular, will leave the system open to abuse by predatory men who seek access to women's safe spaces.

2.16 Some respondents questioned why there is now any need for the 2004 Act to exist at all, asserting that the legislation was put in place to allow trans people to marry at a time when same-sex marriage was not legal.

2.17 Other areas of life where application processes are lengthy or potentially difficult were also described, and it was argued that it is not possible to self-identify in many other areas, including with respect to other protected characteristics under the Equality Act 2010, such as race or disability.

2.18 Finally, it was suggested that, in addition to having not made a clear case for change, the Scottish Government has no mandate to proceed with change. Specifically, it was suggested that, while referring to reviewing and reforming gender recognition law, the 2016 SNP Manifesto for the Scottish Parliament elections did not outline a declaration-based process as proposed in the draft Bill.

Best practice, including legislative compliance

Those broadly in support of a statutory declaration-based system

2.19 Some respondents referred to both international law and practice in other countries in support of their case for change. Their comments included that the European Court of Human Rights (ECHR) has been clear that trans people have the right to legal recognition of their gender identity.^[8] There was also reference to a self-determination based approach being in line with the Yogyakarta Principles,^[9] including Principle 31, The Right to Legal Recognition,^[10] and that this aligns with Resolution 2048 of the Parliamentary Assembly of the Council of Europe.

2.20 It was also noted that over recent years a number of countries, including some Council of Europe member states, have adopted a self-determination model for gender recognition legislation, including Belgium, Denmark, Iceland, Ireland, Luxembourg, Malta, Norway and Portugal. Some respondents from overseas referred to the approach adopted in their own country, with Argentina, Ireland, Malta and Norway reported as offering models of good or best practice.

Those broadly opposed to a statutory declaration-based system

2.21 Other respondents noted the consultation paper's acknowledgement that the present system is compliant with both international law and human rights obligations and there was particular reference to the consultation paper's statement that Scotland's current legislation fully meets European law.

2.22 Respondents argued, therefore, that there is no requirement for change on legal or human rights grounds. Further, it was suggested that the Yogyakarta Principles were compiled by lobbyists, have no standing in international law, are not endorsed by academics working in the field, and are both contentious and controversial.

2.23 The introduction of declaration-based systems in other countries listed in the consultation paper was argued to be recent and their success to be as yet unproven. It was suggested that, before proceeding on the premise that these systems represent best practice, the Scottish Government requires peer-reviewed comparison data from those countries. Further, no details are presented on how self-declaration operates in other jurisdictions, or the effects on women's sex-based rights.

2.24 The statement in the Foreword to the consultation paper that the proposals are in line with the approach of a number of other countries, where 'the impact has been positive for the trans community and without a detrimental impact on others' was also highlighted. This was described as being unsupported by evidence while, in fact, problems (for example within women's prisons) are now coming to light in other jurisdictions. More generally, it was suggested that the Scottish Government is mistakenly interpreting absence of evidence of negative impacts as evidence of their absence.

Impact on women and girls

Those broadly opposed to a statutory declaration-based system

2.25 A fundamental concern expressed by many respondents was the likely impact of the proposed reforms on women and girls. It was often argued that the Scottish Government is not listening to the voices of women and that the consultation paper fails to explain how abuses of a declaration-based system – as outlined below – will be prevented. As discussed further at Question 5, existing impact assessments were often suggested to be inadequate.

2.26 General comments often included that the proposals, and particularly the focus on gender, promotes out-dated stereotypes of masculine and feminine, and implies that women can or should be expected to conform to these stereotypes. Some respondents, including many who stated that they are women, gave examples of their own choices in terms of clothing, employment or division of tasks in the home, querying whether these could or should define what it means to be a woman.

2.27 Beyond this there were two central concerns:

• Lack of safeguarding measures, including because of the removal of the requirement for a diagnosis of gender dysphoria, will make the system open to abuse, allowing predatory men to access women's safe spaces. Specific concerns were raised with respect to prisons, changing rooms, public toilets, school toilets and refuges. It was noted, including in some cases by respondents who cited their personal experience in this respect, that victims of male violence may feel threatened by the presence of male-bodied people, even if those concerned mean no harm.
• Women's sex-based rights will be compromised. Potential effects on women's sport, medical services, rights to equal pay and women only shortlists were all raised.

2.28 It was often argued that the consultation paper fails to address the interaction between self-declaration of gender and protection of single-sex spaces under the Equality Act (2010) and, specifically, that there is a lack of clarity on the operation of single-sex exemptions. It was also suggested that, as it would be impossible to know whether an individual has a GRC, in reality users of single-sex spaces could not challenge anyone who claims to be entitled to use them.

2.29 These broader issues and concerns were sometimes raised at several questions, albeit that because they disagreed with the fundamental principles underpinning the draft Bill, many respondents did not make further comments about the specific proposals. However, many did make further and often very substantive comments in relation to the Equality Impact Assessment (EQIA), as discussed at Question 5.

Those broadly in support of a statutory declaration-based system

2.30 It should also be recognised that others rejected the idea that a move towards a statutory declaration-based system would be harmful to women, with some of those making this point noting that they were women and feminists. This issue is also returned to at Question 5.