Publication - Consultation analysis

Gender Recognition Reform (Scotland) Bill: consultation analysis

Published: 2 Sep 2021
Directorate:
Justice Directorate
Part of:
Communities and third sector, Equality and rights
ISBN:
9781802012149

This report presents the analysis of responses to our consultation on the draft Gender Recognition Reform (Scotland) Bill.

Gender Recognition Reform (Scotland) Bill: consultation analysis
5. Reducing the minimum age for obtaining legal gender recognition to age 16

5. Reducing the minimum age for obtaining legal gender recognition to age 16

5.1 The Scottish Government considers that the minimum age for applying for legal gender recognition should be reduced to 16. The consultation paper notes that this would be in line with a number of other areas where people obtain rights at 16 including the school leaving age, the minimum age for marrying or entering a civil partnership, and for voting in Scottish elections. It also observes that, in recent years, there have been moves to provide more rights at an earlier age.

5.2 The analysis of further comments at this question is presented according to responses at the closed question. Those who thought the minimum age should be reduced generally equated to those broadly supporting a move to a declaration-based system. Those who did not agree with the minimum age being reduced generally equated to the group of respondents broadly opposed to a declaration-based system.

Q3: Should the minimum age at which a person can apply for legal gender recognition be reduced from 18 to 16?

5.3 Responses to Question 3 by respondent type are set out in Table 2 below. A more detailed breakdown according to the location of respondents is presented in Annex 2.

5.4 As noted in Chapter 1, the closed element at Questions 1, 2, 4 and 5 asked only if respondents wished to make a comment. Question 3 asked if respondents agreed with a specific proposal or not.

5.5 Based on comments made, it appears that some respondents who answered 'yes' at Question 3 did so meaning that they wished to make a comment, with that comment making clear that they did not agree with lowering the age to 16. In other cases, the respondent's overall position (in terms of whether 'yes', 'no' or 'don't know') was not absolutely clear.

5.6 Based on their comments at other questions, it is also possible that some respondents who answered 'no' at Question 3 and did not make a comment may have been indicating that they did not wish to make a further comment, rather than they did not agree with lowering the age to 16.

5.7 Given the scale of overall response, it is not possible to identify all responses which may have been affected and as contact information may not have been available, it was not possible to contact respondents to clarify their position. However, the Scottish Government did contact a small number of organisations whose comment at Question 3 suggested very strongly that they had not answered the closed element of Question 3 as they would have intended. Five out of the six organisations contacted asked to have their answer to the closed element of Question 3 changed. The remaining organisation did not respond to the query.

5.8 Although this issue is unlikely to have affected the overall balance of opinion at Question 3, it does mean that the results at the closed element of Question 3 should be viewed with a degree of caution.

Table 2: Question 3 - Should the minimum age at which a person can apply for legal gender recognition be reduced from 18 to 16?
Respondent type Yes No Don't know Not answered Total
Children or Young People's Group 4 - - 1 5
LGBT Group 26 4 2 2 34
Local Authority, H&SCP1 or NHS 10 1 - 2 13
Other 19 9 5 - 33
Public Body 3 1 - 1 5
Religious or Belief Body 2 32 - 1 35
Third Sector Support Organisation 10 3 1 1 15
Trans Group 15 2 - 3 20
Union or Political Party 15 4 - 2 21
Women's Group 3 28 1 2 34
Total Organisations 107 84 9 15 215
% of organisations answering 2 54% 42% 5%    
Individuals 9,294 6,944 390 215 16,843
% of Individuals 56% 42% 2%    
All respondents 9,401 7,028 399 230 17,058
% of all respondents answering 56% 42% 2%    

1 Health and Social Care Partnership 2 Do not add to 100% due to rounding

5.9 Overall, a majority of respondents who answered the question - 56% - thought that the age at which a person can apply for legal gender recognition should be reduced from 18 to 16, while 42% thought it should not, and 2% did not know. Among organisations who answered the question, 54% agreed, 42% disagreed and 5% did not know.

5.10 Those respondents who identified themselves as resident in Scotland (see Table 3 in Annex 2) were evenly divided, with 49% agreeing that the age should be reduced to 16, 49% disagreeing and 3% saying they did not know. Individuals who are resident in Scotland were less likely to agree than all individuals (49% compared to 56% of those responding).

5.11 The balance of views among organisations remained broadly the same – of those within Scotland, 55% agreed and 39% disagreed, as opposed to 54% and 42% respectively of all organisations that responded.

5.12 Among those who disagreed, a large majority made clear in their further comments that they thought the age should not be reduced at all, although a small number (including one Trans Group) disagreed because they thought it should be reduced further, to include those under 16. Small numbers of other respondents who thought the age should be reduced to below 16 did not answer the closed question (including two Trans Groups, an LGBT Group and a Third Sector Support Organisation), while an Other respondent chose 'don't know' for the same reason. As noted at paragraph 5.32 onward, many respondents who agreed that the minimum age should be reduced to 16 also argued that legal gender recognition should be possible at an earlier age.

5.13 Among organisations, a large majority of Religious and Belief Bodies and Women's Groups did not agree that the age should be reduced to 16, while in all other groups a majority agreed that it should be reduced.

5.14 Around 12,000 respondents made further comment at Question 3.

5.15 The analysis of further comments presented below is divided according to responses at the closed question, beginning with those who agreed that the age should be reduced to 16. Comments provided by respondents who did not know or did not answer the closed question are addressed where most appropriate.

Age should be reduced to 16

Age of legal adulthood and other age-related restrictions

5.16 It was argued that a young person in Scotland is legally an adult at 16, or that 16 is accepted as the age of majority. Many respondents observed that the proposed change would bring gender recognition into line with many other rights that can be exercised at 16. Among the examples given were that if a 16-year-old is considered sufficiently mature to marry, join the army, gain employment, vote in elections, or consent to medical treatment and surgery, then they should be entitled to apply for legal recognition of their gender and to change their birth certificate.

5.17 Age was also noted to be a protected characteristic under the Equality Act 2010,[15] and it was argued that limiting legal recognition to those over the age of 18 would have a negative effect on younger trans people.

5.18 Various articles of the United Nations Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR) and the Yogyakarta Principles were cited by respondents as being in keeping with extending the rights of young trans people.[16] UNCRC obligations were noted to include: ensuring that the best interests of the child are a primary consideration; respecting the right of a child to be heard and taking account of their views; and protecting children against discrimination. Specifically, the scope of Article 8 – the right to identity – was noted to include characteristics such as sexual orientation and gender identity. In many cases, these points were extended to make the argument for reducing the age for legal gender recognition below 16 as discussed further below.

5.19 While supporting the proposed change, a small number of respondents also suggested additional safeguards could be put in place for young people or argued that vulnerability should be taken into consideration. In terms of safeguards, it was suggested that making the reversal of any gender recognition process easier for 16- and 17-year-olds could involve requiring a court process rather than self-declaration, having formal requirements around medical or psychological support, or additional notification requirements for looked after young people. However, others argued against a court order system since this would replicate much of the bureaucracy and gatekeeping they saw as problematic in the existing GRC system.

Sufficient maturity to know who they are

5.20 Many 16-year-olds were argued to be mature, capable and responsible enough to make a decision on their legal gender identity. Far from making such a choice on a whim, it was argued trans young people will have spent a long time reaching this decision. When young people are certain, it was suggested, delay is unnecessary and may be harmful.

5.21 Some respondents drew on their personal experience of having known that they were trans from an early age, or commented that the ability to obtain legal gender recognition at 16 or 17 would have made a huge difference for them, for example helping with a more positive self-image or reducing anxiety and depression.

Benefits to mental health

5.22 Among respondents who agreed that the age for legal gender recognition should be reduced to 16, the positive impacts this could have on mental health were frequently raised. The many challenges faced by young trans people were cited including discrimination, abuse and harassment. It was predicted that making trans teenagers feel more accepted, supported or empowered by legally recognising their gender could help to alleviate dysphoria and distress, improve wellbeing and quality of life, and reduce depression and suicide rates.

5.23 Conversely, making young people wait longer to have their gender recognised was suggested cruel or unnecessary, and was suggested likely to have corresponding negative impacts on mental health.

Importance of consistent documentation

5.24 The importance of having a birth certificate that matches their identity and other documentation was identified as being of great importance to young trans people. It was observed that trans children may now transition socially at an earlier age than would have previously been the case, and therefore need legal recognition to protect their privacy and to avoid risk of outing in situations where they need to present a birth certificate as identification. This was suggested to be a more likely scenario for young people who are less likely to have alternative forms of identification such as a passport or a driving licence.

At school

5.25 In the school environment it was argued to be inappropriate that acknowledgement of a young person's gender identity should be left to the discretion of head teachers. It was suggested preferable to create a legal right to gender recognition that would, in turn, require investment in professional learning programmes for teachers who, it was argued, may currently be worried about doing or saying 'the wrong thing'.

5.26 Alongside the extension of rights and provision of support for transgender young people it was thought important that schools challenge gender stereotypes, to ensure that children and young people do not feel pressured into legally changing their gender because they do not conform to society's expectations. It was suggested that improved education on gender issues is needed.

Moving into adulthood

5.27 Respondents noted that at 16 or 17 many young people will be reaching a time of change in their lives – becoming independent, moving away from home, beginning full time work, or starting a university or college course. Some described this as making a new start. The benefits of being able to obtain legal gender recognition and amend their birth certificate before these life changes were highlighted. It was argued that, without this ability, events that should be positive and exciting could instead be very stressful for young trans people, or may be put off until legal recognition is available to them.

5.28 With respect to further and higher education it was suggested that 16- or 17‑year-old students without a GRC may have to register for their studies as the wrong gender, causing potential difficulties after graduation if the qualification is in a different name to the one being used.

5.29 It was noted that if the age of 16 is implemented, colleges and universities will need to ensure that their safeguarding provisions adequately consider younger students transitioning.

5.30 For those moving into the workplace, the importance of a birth certificate as proof of an individual's right to work in the United Kingdom was noted, and it was argued that this may be of particular importance to a person of 16 or 17 who is less likely to have a valid passport. Similarly, someone applying for their first job will not have a P45 or P60 from a previous employer, and so is more likely to have to use their birth certificate to prove their identity.

Legal recognition will not impact medical treatment

5.31 Many respondents emphasised their view that legal gender recognition is about documentation and will not impact other aspects of the transition process such as social presentation, accessing gender clinics or the waiting period for any medical treatment. It was argued that decisions about medical treatment for young trans people would continue to be made by medical professionals who would not be obliged to provide people with interventions because they have legal gender recognition.

5.32 Further, it was reported that in Scotland, children and young people under 16 cannot access any irreversible treatments as part of a medical transition, such as cross-sex hormones and that those under 18 cannot access surgical interventions.

5.33 Although the proposals relate only to legal gender recognition, some respondents did connect a reduction in the age at which a trans young person could apply for a GRC with earlier or easier access to some treatments, such as puberty blockers. This was seen as positive if it would mean more young people can avoid going through puberty in their birth gender. Some respondents referred to the importance of allowing young people to access puberty blockers, which were seen as both safe and reversible.

5.34 On a legal matter, it was observed that the NHS Scotland Gender Reassignment Protocol allows that a person of 16 or 17 can consent to treatment and it was suggested to be anomalous that consent could be provided for gender reassignment treatment at an age when legal gender recognition is not possible.

5.35 However, the absence within the proposals of any mechanism for setting out how an individual child's understanding of the process and its consequences would be assessed was noted.

Legal recognition for those under 16

5.36 While welcoming the proposal to reduce the minimum age for legal gender recognition to 16, many respondents encouraged the Scottish Government to go further and make provision for children under 16. This was argued to be in keeping with many of the principles of the UNCRC as referenced above. It was also suggested that as children over 12 are deemed to have legal capacity to make decisions in certain circumstances, this principle could apply to gender recognition.

5.37 It was also argued that, although the consultation paper suggests young people under 16 are likely to be uncertain of their gender identity, this is not necessarily the case. A small number of trans children who are very confident and certain of their gender were reported to have fully socially transitioned with the support of family, peers and school and it was suggested these young people should have access to legal gender recognition.

5.38 The majority of those who argued in favour of legal gender change for under 16s suggested this should be made possible with parental approval, sometimes noting precedents for this in other countries. Other respondents proposed such a right should be irrespective of parental agreement or did not reference such agreement.

5.39 With reference to a mechanism for those who do not have parental support, there were suggestions that it would be preferable for this to be an administrative process, although the possibility that a court process might be required was also acknowledged. A specific suggestion was that mediation and assessment of capacity[17] should be made to determine if the young person understands the implications of their decision if they wish to legally change gender without parental consent.

5.40 Provision for under 16s to change their legal gender and amend their birth certificate was also argued to be in line with existing rights for this age group to change their sex on school records, medical records, and passports. Under 16s were argued to be particularly dependent on their birth certificate as proof of identity.

Providing information and support

5.41 It was suggested that accessible information on the meaning of legal gender recognition and the legal consequences of the statutory declaration must be made available to applicants, and that professionals involved in the process must explain the process to 16- and 17-years-old making a declaration. Signposting to areas of additional support was also suggested to be important.

5.42 Specialist Third Sector organisations were argued to be crucial in providing both practical and emotional support to young people – for example in relation to understanding their rights, making an application and managing the impacts of the application, and the Scottish Government was urged to ensure they are provided with funding.

Age should not be reduced to 16

5.43 In their further comments, a large majority of those who disagreed at Question 3 made it clear that they did not think that the age should be reduced at all. A small number who disagreed did so because they thought the age should be reduced to below 16 – a view which, as noted above, was also expressed by many of those who agreed the age should be reduced from 18 to 16.

Age of legal adulthood and other age-related restrictions

5.44 Some respondents simply stated a view that a 16-year-old is still a child, while others cited the UNCRC as defining children as those under 18 years of age. Statutory guidance supporting the Children and Young People (Scotland) Act 2014 was also noted to include children and young people up to the age of 18, as was the Named Person Scheme. Other situations where 16- and 17-year-olds would not be treated as adults were suggested to include NHS Paediatric Services and forthcoming Child Protection guidance.

5.45 As noted in paragraph 5.1, the consultation paper argues that reducing the threshold for legal gender recognition to 16 would be in line with a number of other areas where young people obtain rights at 16. However, many respondents who opposed an age reduction argued that the other decisions cited are reversible in a way that legal gender recognition does not appear to be.

5.46 Numerous activities that the state has decided are not appropriate for those under 18 were also reported by respondents including: getting a tattoo; buying alcohol or tobacco; signing a contract; placing a bet; getting a credit card; or hiring a sunbed. It was argued to be inconsistent that 16- and 17-year-olds should be barred from these activities on safeguarding grounds while permitted to change their legal gender and potentially set out on a pathway to life-long medication and body-altering surgery. Rather, legal recognition was argued to equate to legal 'affirmation' by the government. Other issues relating to affirmation are discussed further below.

Life stage

5.47 Respondents frequently argued that 16 is simply too young to legally change gender. Some of those taking this view referred to a lack of sufficient emotional maturity or life experience to support making such an important, apparently irreversible decision.

5.48 Some respondents commented that they were parents and that their own children do not have (or would not have had) the maturity to make such an important decision at 16. They pointed to the many pressures on young people – for example with respect to schoolwork and exams - arguing that it would be wrong to introduce the possibility of legal gender change at such an important time.

5.49 An associated view was that young people may be susceptible to external pressures, from their peers, social media, pressure groups, or in school and that, while 16- and 17-year-olds may have sincere and strongly held views, they may also be at a life stage when those views might change.

Challenging gender stereotypes

5.50 Echoing comments at earlier questions, some respondents argued that the Scottish Government should be doing more to challenge gender stereotypes and that children and young people should be able to present as they wish, without needing or being encouraged to legally change their gender. Some of those taking this view extended their argument to suggest that materials relating to gender identity used in Scottish schools may be contributing to an increase in the number of children expressing a desire to change gender.

Possible consequences of an affirmation-based approach

5.51 It was reported that the UK Government has ordered an inquiry into a steep rise in the number of young girls expressing a desire to change gender[18] and there were calls for the Scottish Government to investigate this phenomenon before proceeding with reforms to the 2004 Act. Respondents often suggested factors they thought to be contributing to the observed increase in presentations including:

  • Social pressures (particularly on girls) from the internet and via social media, that may lead some to feel they would be happier as males.
  • Homophobia – from society and sometimes internalised.
  • Materials used for teaching on gender identity in schools, including the idea that gender change can be easy. Furthermore, young people are not being exposed to other perspectives about gender through such teaching materials.

5.52 It was also suggested that guidance provided to Scottish schools promotes unquestioning affirmation of the view of a child who thinks they are transgender, and that similar affirmation may come from clinicians.

5.53 Some people who have detransitioned were reported to have felt let down by such an approach, and the judicial review case being brought against the Tavistock Clinic was often referenced,[19] with a suggestion that this should give the Scottish Government pause for thought.

Ongoing physical and mental development

5.54 Respondents also noted that the teenage years can be difficult and confusing for many, and that hormonal and physical changes during puberty can lead some to feel uncomfortable with their bodies. Anxiety about body image or failure to conform to gender stereotypes was also suggested to be common. A small number of respondents described their own unhappiness as gender non-conforming teenagers, arguing that they might well have chosen to transition had the option been open to them, but are now sure they would have regretted such a decision.

5.55 A review of evidence on the development of cognitive and emotional maturity in adolescents carried out for the Scottish Sentencing Council [20] was highlighted by many respondents, as were associated proposals that sentencing young people should take account of evidence that the brain does not mature fully until at least 25.[21] There were particular references to findings that:

  • Areas of the brain controlling emotion develop before those determining cognitive ability and self-control, explaining increased risk-taking and emotionally driven behaviour in young people.
  • Mental disorders and distress, adverse childhood experiences, traumatic brain injury and alcohol and substance use can also delay brain development.

5.56 In the light of these findings and a related Scottish Sentencing Council consultation on revised sentencing guidelines for young people,[22] it was argued to be inconsistent for the Scottish Government to reduce the age at which legal gender recognition can be obtained from 18 to 16. Indeed, some respondents argued that the evidence on brain development would support raising rather than lowering the age.

Starting on a medicalised pathway

5.57 As noted previously, the consultation relates only to the process for legal gender recognition and, at Question 3, the age at which someone can do this. However, many respondents argued that young people can be set on a medicalised pathway leading from puberty-blocking drugs to surgery and that, once started, this course of events may be difficult to stop or reverse. Furthermore, some of the treatments used to delay puberty were reported as being experimental and there were also references to potentially harmful side effects in later life including on fertility and bone density. For some, this raised questions around the ability of a young person to give informed consent, as discussed below.

5.58 It was also argued that legal gender recognition at 16 will encourage some children to start to 'get ready' at an earlier age, pushing still younger children into making a decision about their gender identity. There was an associated concern about the potential for hormones to be taken at a younger age and for the increased use of chest binders.

5.59 Although the consultation paper notes that the draft Bill 'does not affect the professional responsibilities of those offering treatment and support to those distressed or concerned about their gender identity' some respondents argued that, in reality, the proposals could have a significant impact on clinicians and medical professionals. It was suggested clinicians may feel pressurised into prescribing medical treatment for a young person once they have a GRC when they might not otherwise feel that treatment is appropriate. It was also reported that former staff at the Tavistock Clinic have raised concerns that, under the existing system, teenagers are being given puberty blockers without adequate assessment.

5.60 Removing the requirement for a diagnosis of gender dysphoria was often seen as leaving young people without the appropriate professional support to make a life-changing decision. It was reported, for example, that a high but unexplained frequency of autistic young people, and particularly girls, are being referred to NHS gender clinics. The associated concern was that without being assessed for gender dysphoria, these young people may not get the specialist support they need.

5.61 As discussed more generally at Question 1, there was also a concern that if young people are not accessing the necessary services and/or are not having their needs fully assessed, physical or particularly mental health conditions, including eating disorders or depression, might not be picked up. There was also a concern that an opportunity to identify and provide support relating to trauma and abuse, including having been bullied or sexually abused, could be missed. Without all the factors that may be contributing to a young person presenting as trans being taken into account, if was argued that they will not receive the help and support which should accompany such a significant change.

5.62 It was also argued that removal of the requirement for a medical diagnosis may enable or encourage young people to access cross-sex hormones from online sources, and take them without medical supervision.

Desistance and detransition

5.63 It was often stated that many young people who experience gender dysphoria as adolescents find that, given time, their dysphoria resolves without medical intervention. Some respondents argued this to be true in 'the vast majority' of cases, with figures of 80% and 80-90% also commonly reported.

5.64 Many of those desisting after earlier confusion regarding their gender were suggested to be gay or lesbian as adults, with an associated argument that setting such young people on a pathway to transition equates to a kind of conversion therapy.

5.65 There were calls for the Scottish Government to listen to the testimonies of people who have detransitioned before making it quicker and easier to change gender. Some respondents expressed frustration that the experience of this group of (predominantly) young people who have physically transitioned then decided to return to their 'natal sex' is apparently not being considered. It was argued that, collectively, the proposed changes are likely to lead to an increase in the number of young people who regret their transition.

5.66 Research from Sweden cited in the draft EQIA as showing low rates of detransition was argued to be out of date since it applies to the years from 1960-2010, before the current increase in the number of young women identifying as male and before the rise of social media.

5.67 The apparent lack of provision for detransition in the draft Bill is discussed at Question 4. This omission was seen as particularly significant for young people who, it was suggested, may be more likely than older people to apply for a GRC.

Informed consent

5.68 Although, as noted above, the draft Bill relates to obtaining a GRC and not to medical treatment, some respondents did raise issues relating to informed consent to treatment.

5.69 A number of respondents questioned the ability of children to give truly informed consent to medical treatments associated with gender change. This was suggested to be the case both because of the relative immaturity of the young people involved and because some of the drugs used to delay puberty have not been tested fully.

5.70 It was argued that, for many of the reasons discussed above, a young person of 16 or 17 may find it difficult to fully comprehend the implications of reduced bone density or infertility in later life, and that they should therefore be protected from making a decision they may come to regret. With respect to fertility, several respondents highlighted a contrast with reports that the NHS refuses requests for sterilisation from women in their twenties and thirties who have not had children because of the risk they may change their minds and regret the decision.

5.71 It was noted that the case against the Tavistock Clinic referenced above centres on the assertion that children and young people cannot consent to the life altering consequences of powerful and experimental hormone drugs.[23]

5.72 Concerns were also raised with respect to the absence of any provision for parental consent for children aged 16 and 17 in the draft Bill and it was asserted that every other country mentioned in the consultation document makes additional requirements for young people seeking legal sex change, such as parental authorisation.

Rights of girls in schools

5.73 It was suggested that making it possible for a 16- or 17-year-old to legally change their gender will create practical problems for schools with respect to changing rooms, and in particular will create social pressure on girls to accept boys who identify as female in single-sex spaces.

Alternative proposals

5.74 A small number of respondents who opposed reduction in the age at which legal gender recognition can be sought suggested alternative arrangements that might be implemented. These included:

  • Reducing either the age, or the time living in the acquired gender, but not both.
  • Reducing the age but retaining the requirement for a medical diagnosis.
  • Starting the process at 17 and reducing the total time to 12 months.
  • Counting the required period living in the acquired gender prior to application from the age of 16 and extending the period of reflection until 18.

5.75 Among some respondents, particularly those who answered 'Don't know' at the closed question, there was a view that the age at which gender recognition can be sought should depend on the individual, or should be made on a case-by-case basis, including because the maturity of 16- and 17‑year-olds can be very variable.


Contact

Email: ceu@gov.scot