Gender Recognition Reform (Scotland) Bill: child rights and wellbeing impact assessment

3. Will there be different impacts on different groups of children and young people?

3.1. This Bill will affect children and young people aged 16 and 17, in that they will now be eligible to apply for legal gender recognition if they wish. The Bill will not change the current legal position for children and young people below 16, who will remain ineligible.

3.2. Some responses to both consultations which were broadly in support of lowering the age to 16 also stated that reasoning for doing so would also extend to children under 16. The Scottish Government's view is that there is a careful balance to be struck in relation to people under 16. On the one hand, we should treat children with dignity and respect, giving weight to their views and wishes in line with their individual capacity. On the other hand, we should ensure that children have the right protection and care.

3.3. The Scottish Government's view is that lowering the age of application below 16 without any further safeguards would take no account of the capacity of a child below that age to take decisions, nor their physical maturity and would allow a child below that age to apply irrespective of their capacity to understand the nature and consequences of their decision. The Scottish Government considers that the UNCRC Articles do not appear to confer a right on under 16s to obtain legal gender recognition, and that the proposed reform of lowering the minimum age to 16 strikes the right balance between furthering children and young people's rights while maintaining appropriate levels of protection and care.

3.4. The Scottish Government is also mindful that these proposals may not impact on all members of a given group equally, for example whilst there are positive impacts identified for some trans people aged 16 and 17 for others, including those who identify as non-binary, there may be no impact.

3.5. A 2014 research paper sets out the finding of a range of studies estimating the numbers of children and adults who might be trans or experience gender dysphoria.^[4] For example, it notes that in one study from the Netherlands, parents reported 1.4% of boys and 2% of girls want to be the opposite sex and that in another, for people aged 15 to 70 years old, 0.6% of men and 0.2% of women reported an ambivalent or incongruent gender identity.

3.6. If we assume that an average of the figures in paragraph 3.4 for boys and girls and men and women aged 15-70 , i.e. that 1.05% might be trans, is representative in Scotland, then extending gender recognition to those aged 16 and 17 could affect around 1,150 people aged 16 and 17 in Scotland.^[5] The UK Government's LGBT Survey published in July 2018 was open to respondents aged 16 and over. Of the 6,910 respondents who identified as trans men and women, 15.5% were aged 16 and 17.^[6] (However, compared to general UK population, young people were over-represented in this survey.)

3.7. A number of countries permit those younger than 18 to obtain legal gender recognition. The table in Appendix A contains information about other countries and territories which have processes for people aged under 18. There is also some data available about the numbers of under 18 year olds doing so. Numbers are generally low as a percentage of those otherwise obtaining recognition. The Republic of Ireland and Norway have similar populations to Scotland though they have differing recognition systems. Between September 2015 and December 2020, 14 young people aged 16 and 17 have obtained legal recognition in the Republic of Ireland.^[7]

3.8. This is 2.4% of the total number of people who had changed their legal gender there (579) by the end of December 2020. There have been three revocations of GRCs made since September 2015 in the Republic of Ireland, all from applicants aged over 18 years. In Norway, which does not have a court process for children between 6 and 16, between 1 July 2016 and September 2016, nine children changed their legal gender. This is 3.6% of the total applicants in the same period (250).