Chapter 2: Origins of The Gender Recognition Act 2004
2.01. The GRA was introduced following two European Court of Human Rights rulings in 2002, in the cases of Christine Goodwin v The United Kingdom and I v the United Kingdom, that the UK had breached the Convention rights of two trans people under Article 8 (the right to respect for private life) and 12 (the right to marry and found a family). There had also been consideration of gender recognition in a UK Interdepartmental Working Group convened in 1999.
2.02. The European Court of Human Rights cases concerned the applicants’ experiences as trans people in relation to a range of issues, such as pension rights (the state pension age being different for men and women), discrimination at work and marriage. The European Court of Human Rights determined that it would not place a disproportionate burden on society to require the Government to accommodate the needs of trans people by issuing new birth certificates.
2.03. The GRA was legislation at Westminster. At the time, the Scottish Parliament approved a Sewel Motion (now known as a Legislative Consent) to allow Westminster to legislate for devolved matters.
The Equality Act 2010
2.04. In 2010, the UK Parliament passed the Equality Act 2010 (“the 2010 Act”). The 2010 Act is largely a reserved matter for the UK Government and therefore cannot be amended by the Scottish Parliament. The 2010 Act had two main purposes – to harmonise discrimination law, and to strengthen the law to support progress on equality.
2.05. Under the 2010 Act, it is generally unlawful to discriminate against people who have a “protected characteristic”, as defined under the Act.
2.06. One of the protected characteristics in the 2010 Act is “sex”. Paragraph 54 of the Explanatory Notes to the 2010 Act says “references in the Act to people having the protected characteristic of sex are to mean being a man or a woman, and that men share this characteristic with other men, and women with other women.”
2.07. Another of the protected characteristics is “gender reassignment”. Paragraph 41 of the Explanatory Notes to the 2010 Act says that section 7 of the Act “defines the protected characteristic of gender reassignment for the purposes of the Act as where a person has proposed, started or completed a process to change his or her sex.”
2.08. The EHRC defines this as “when your gender identity is different from the gender assigned to you when you were born. For example:
- a person who was born female decides to spend the rest of his life as a man”
2.09. The EHRC also states that “you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one”.
2.10. Trans men and women who have not yet obtained a GRC may have transitioned socially, with most of their identification documents, including Government issued ones such as a passport and driving licence reflecting this. However, without a GRC the trans person will have a birth certificate and legal status which is not consistent with how they lead their lives.
GRA reform and the potential impact on women
2.11. A number of the points made following the previous consultation on reforming GRA for Scotland related to the impact on women. The 2010 Act contains a number of exceptions to the general provisions which, for example, allow trans people to be excluded from single sex services when it is a proportionate means of achieving a legitimate aim. Chapter 5 of this consultation outlines these exceptions in greater detail.
Continued consideration of the law on gender recognition by the European Court of Human Rights
2.12. The European Court of Human Rights has continued to consider cases relating to gender recognition. In A.P., Garçon and Nicot v. France in 2017, the Court held:
- A requirement to demonstrate an irreversible change in appearance was a violation of Article 8 of the ECHR on the right to respect for private and family life. (There is no such requirement under the GRA).
- A requirement to demonstrate the existence of a gender identity disorder was not a violation of Article 8.
- A requirement to undergo a medical examination was not a violation of Article 8.
2.13. The Scottish Government’s conclusions from the various relevant cases dealt with by the European Court of Human Rights are:
- Scotland must have a system for obtaining legal gender recognition, to comply with the ECHR. Any Bill to remove the current system for obtaining legal gender recognition and not replace it with a new system would be outwith the competence of the Scottish Parliament;
- As the case-law stands at the moment, the current system in Scotland is compliant with the ECHR; and
- As the case-law stands at the moment, there is no ECHR obligation on Scotland to introduce a system for obtaining gender recognition based on an applicant’s statutory declaration.
2.14. On the last point, the ECHR is a “living instrument” and interpretation of it can change over time and as ECHR member states change legislation, procedures, policies and processes. Therefore, the Scottish Government considers that it needs to keep legislation such as the GRA under review to ensure that it continues to be in line with international best practice. As indicated in the next Chapter of this consultation, the Scottish Government considers that there are policy reasons, including international developments, for changing the GRA to move towards a statutory declaration based system and away from the current system.
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