This page provides detailed information about issues related to the Gender Recognition Reform (Scotland) Bill.
- Current position
- About the Bill
- Other issues related to the Bill
- Contact details for more information
Meaning of ‘transgender’ or ‘trans’
These are terms used to describe people whose gender identity does not correspond with their sex recorded at birth and what is recorded on their birth certificate.
Meaning of ‘gender recognition’
Under the UK’s Gender Recognition Act 2004, trans people can apply for a Gender Recognition Certificate (“GRC”), which enables them to be legally recognised in their acquired gender and be issued with a new birth certificate.
Not all trans people necessarily want or need a GRC. You do not need a GRC to change your gender on documents such as your passport or driving licence or to live in your acquired gender.
Current process for legal gender recognition
Applications are considered by the Gender Recognition Panel, which is a UK-wide tribunal. Applicants must be at least 18 years old. Most applicants use the standard track. This means that they must satisfy the Gender Recognition Panel that they have, or have had, gender dysphoria by producing two medical reports. Applicants must also make a statutory declaration that they have lived in their acquired gender throughout the previous two years.
It is not necessary for a person to have had medical treatment such as hormone treatment or gender reassignment surgery in order to obtain legal recognition under the 2004 Act. However, if an applicant under either the standard or alternative track has had such treatment or surgery, then details of that treatment must be provided in a medical report submitted with their application.
If the Panel is content that an application meets the requirements of the 2004 Act they will issue the successful applicant with a full GRC. When a person is issued with a full GRC, this has the effect of changing their sex for legal purposes.
About the Bill
Trans people have been able to apply for a Gender Recognition Certificate (“GRC”) since the Gender Recognition Act 2004. The Scottish Government has introduced a Bill which aims to improve and simplify the application process for that GRC by making it less lengthy and intrusive. The Bill does not introduce new rights for trans people but will mean that trans people can have better access to their human rights.
The Bill does not make changes to public policy or to the 2010 Equality Act, which includes a number of exceptions which allow for trans people to be excluded when this is a proportionate means of achieving a legitimate aim. This means that single sex services are protected as are single sex employment rights and health services. Those exceptions are important and the Scottish Government supports them. This Bill does not make any changes to those exceptions.
Obtaining a GRC will remain a serious and lifelong commitment and applicants will still be required to make a statutory declaration to this effect. This is a balanced and proportionate way of improving the current system.
The Bill’s provisions include:
- applications would be made to the Registrar General for Scotland instead of the Gender Recognition Panel, a UK tribunal
- applicants do not need to submit a medical diagnosis and evidence to support the application (as current process needs)
- applicants would make a statutory declaration that they have lived in the acquired gender for at least three months before applying (rather than the current period of two years) and that they intend to live permanently in their acquired gender
- the application would then be determined by the Registrar General after a three month reflection period if the applicant confirms they want to proceed;
- applicants would either be the subject of an entry in a birth or adoption record kept by the Registrar General, or be ordinarily resident in Scotland
- the minimum age of applicants would be 16, rather than 18 at present; and
- the Registrar General would be required to report annually on the operation of the process
Why reform is necessary
The Scottish Government is aware that the current system has an adverse impact on people applying for gender recognition. This is due to the requirement for a medical diagnosis and the intrusion of having their life circumstances considered by the Gender Recognition Panel.
We think that trans people should not have to go through a process that can be demeaning, intrusive, distressing and stressful in order to be legally recognised in their lived gender.
The World Health Organisation’s revised International Classification of Diseases, approved in 2019, redefined gender identity related health, removing it from a list of “mental and behavioural disorders”. They took this step to reflect evidence that trans‑related identities are not conditions of mental ill health, and classifying them that way can cause distress.
Lowering the minimum age for applications to 16
The current minimum age for applicants is 18 – though the two year period means someone wanting to make the change at 18 would need to have started collecting evidence and living in their acquired gender from 16.
16-year-olds can leave home, get a full time job, change their name, consent to medical treatment and vote. Many 16 and 17 year-olds have the capacity to make mature decisions about their own lives.
It’s clear that trans young people feel excluded by a system that denies them access to legal recognition, particularly for example in the case of someone wanting to make the legal change before moving into further or higher education or employment.
But we also recognise that these are important decisions, and it’s vital that everyone applying to the process, especially young people, fully understand and carefully considers before doing so.
Support and guidance will be provided to young people through schools, third sector bodies and National Records of Scotland.
Under the oversight of the Registrar General, National Records of Scotland will routinely give additional and careful consideration of applications from 16 and 17 year-olds. They will provide support on the process, and where necessary will undertake sensitive investigation, and this could include face-to-face conversations with applicants.
Every 16 or 17 year old who applies will be offered – and encouraged to take up – the option of a conversation with NRS to talk through the process.
The Scottish Government has no intention to extend legal gender recognition to those under 16. Our view is that a minimum age of 16 for applying for legal gender recognition is appropriate, and aligns with a number of other areas in Scotland where young people obtain rights in Scotland.
Who can apply
Only applicants with a Scottish birth register entry or who are ordinarily resident in Scotland will be accepted. Being ‘ordinarily resident’ in Scotland means that you live here on a settled basis, lawfully and voluntarily.
Making a fraudulent application
The Bill creates an offence of making a false statutory declaration or making a false application for gender recognition, with penalties of up to two years imprisonment and an unlimited fine.
These penalties will provide assurances against false application though evidence from other countries suggest this would be extremely rare.
The Bill will not make any changes to public policy. However, we know people have questions about the impact of the reforms and we answer some of the most common here.
Recording data on sex and gender
The Bill does not make changes to processes for data collection. Trans people have already been able to change their legal gender since the 2004 Act came into force and the Bill is about improving the application process. In 2021, the Chief Statistician published guidance for public bodies on the collection of data on sex and gender.
Single sex services for domestic violence and sexual assault survivors
Refuges and shelters for the victims of domestic violence and sexual assault provide essential support to women leaving unsafe situations. All women including trans women deserve effective support that helps them to feel safe and to be safe. The Bill is supported by many women’s organisations that provide support services to women. Many refuges already support trans women escaping abuse – most domestic violence services in Scotland have been doing this for the last 10 years.
Exceptions under the Equality Act 2010 specifically allow communal accommodation and other single sex services to exclude trans people where that is a proportionate means of achieving a legitimate aim. The Act’s Explanatory Notes give an example of a group counselling session for female victims of sexual assault.
The Scottish Government supports those exceptions and the Bill does not change them.
Policy on violence against women and girls
Violence against women and girls, in any form, is abhorrent and has no place in our society. It damages health and wellbeing, limits freedom and potential, and is a violation of the most fundamental human rights.
‘Equally Safe’ is our national strategy to prevent and eradicate violence against women and girls. It was developed by the Scottish Government and COSLA in association with a wide range of partners from public and third sector organisations.
The aim of Equally Safe is to take action on all forms of violence against women and girls. By this we mean violent and abusive behaviour directed at women and girls precisely because they are women and girls. This behaviour is carried out predominantly by men. This behaviour stems from systemic, deep rooted women's inequality, and includes domestic abuse, rape, sexual assault, commercial sexual exploitation, and so called 'honour based' violence like female genital mutilation and forced marriage.
Predatory men who seek to abuse or attack women exist. They do not need to identify as a woman or have a gender recognition certificate in order to do so. The issue is with predatory men and not trans people.
Single sex spaces such as changing rooms and toilets
The Bill does not make changes to toilets and changing rooms. Trans people can and have been using facilities that match their gender for years and they will continue to do so.
The Bill makes no changes in public policy including schools. The Scottish Government has published non-statutory guidance to help schools support transgender young people. This guidance provides teachers with advice and examples of best practice.
Gender identity healthcare
Legal gender recognition and clinical decisions about gender identity healthcare are separate issues.
A gender recognition certificate is not required in order to access gender identity healthcare. There has never been a requirement for someone to have undergone surgery or any other medical treatment to have legal gender recognition nor is there under the Bill.
In December 2021 we published the NHS Gender Identity Services strategic action framework demonstrating our commitment to fund new service models, address waiting times and support those waiting to access services to improve access to, and delivery of, NHS gender identity services. We plan to invest £9 million over 3 years to support the Framework’s actions – £2 million of which was allocated in the 2022/23 Budget.
Crime recording for operational purposes is a matter for the respective body, be that Police Scotland, the Crown Office and Procurator Fiscal Service or the Scottish Courts and Tribunal Service.
Police Scotland have explained that their approach to recording of crime remains what it has always been: they routinely record gender of individuals based on how they present.
The Bill does not involve changes to how Police Scotland or other bodies record or report crimes in Scotland.
The Scottish Prison Service makes decisions on the most appropriate location to accommodate transgender people in our prisons on an individual basis after careful consideration of all relevant factors, including the risks to and from the prisoner. Those are operational decisions.
Obtaining a Gender Recognition Certificate does not automatically provide access to specific accommodation.
These decisions by the Scottish Prison Service seek to protect both the wellbeing and rights of the individual as well as the welfare and rights of others around them, including staff, in order to achieve an outcome that balances risks and promotes the safety of all.
The prison service is currently reviewing of its policy for trans prisoners. As part of this they are speaking with interested groups including prisoners and staff to hear their views around how transgender prisoners are managed. They are also undertaking public engagement as part of the process.
Sports governing bodies set their own rules for participation of trans people, under the Equality Act 2010. This will not change under the Bill.
The Bill makes no changes to rules for women’s sport whether professional, amateur or in schools.
The UK Sports Council Equality Group’s Guidance for the Inclusion of Transgender People in Sport encourages national governing bodies of each sport to define the best options for their sport.
Impact of the Bill on anyone living in the rest of the UK or other countries
There will be no change for those living outside Scotland. Applicants will need to have a Scottish birth register entry or be ordinarily resident in Scotland to apply. Being ordinarily resident in Scotland means that you live here on a settled basis, lawfully and voluntarily.
Similar provision is well established in other countries including Norway, Denmark and Republic of Ireland, and more recently in New Zealand and Switzerland.
It is for the governments of the four nations to make their own decisions in this area. The UK Women and Equalities Committee recently published a report on its inquiry on gender recognition reform. The report called for urgent reforms of the process, including removing the requirement for medical evidence. Conservative Committee Chair Caroline Nokes MP said: “The GRA is crying out for modernisation, and the [UK] Government has spectacularly missed its opportunity.”
Read the latest information and publications about LGBTI and gender recognition.
If you would like any more information please email: GRUnit@gov.scot
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