Ministers announced in June that the Scottish Government would consult on a draft Bill to reform the current process by which trans people obtain legal recognition of their lived gender through a Gender Recognition Certificate (GRC).
To comply with international human rights law, Scotland must have a system for obtaining legal gender recognition. The current system is viewed by many applicants, or would-be applicants, as demeaning, lengthy, and stressful.
Therefore, the Scottish Government is proposing to amend the Gender Recognition Act 2004 to change the way in which a trans person can obtain a GRC.
The reforms do not alter the long standing right of trans men and women to legally change gender: the reforms change the application process for legal recognition. Trans people have been able to legally change their gender for fifteen years. The proposed changes will only affect trans people, and not those who are not trans.
What we are proposing in our draft Bill is that the Registrar General for Scotland would issue the GRC, rather than the Gender Recognition Panel. We also propose to reduce the time someone has to live in their acquired gender from 24 months to 6 months. Trans people will still need to make a statutory declaration stating they intend to permanently live in their acquired gender. People will be subject to criminal proceedings for lying or making false declarations or applications.
Women’s rights and protections will be as strong under this Bill as they are today.
The Scottish Government’s proposals to reform the 2004 Act will not make any changes to the Equality Act 2010. The Government supports the single sex exceptions in the 2010 Act 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 very important and the Scottish Government supports them.
The Scottish Government will continue to address gender inequality and promote, protect and extend the hard won rights of women.
Our proposals are in line with the approach taken by various other countries including the Republic of Ireland, Norway, Malta, Denmark and Belgium. The impact of this approach in other countries has been positive for the trans community and without a detrimental impact on others.
The draft Bill reforms the 2004 Act and the system through which trans people access legal recognition. It does not propose any changes to public policy. The Scottish Government recognise that some organisations have changed policies which are not required in law. We also recognise that they have done so in a well-intentioned attempt to be trans inclusive. However, they may have unintentionally made changes that make women feel uncomfortable and less safe. The Government believes all organisations need to take account of everybody’s rights when any changes in policy are being considered, to ensure all rights, particularly those of women and trans people, are protected. This includes the protection of women’s safe spaces.
Applying for a Gender Recognition Certificate:
|Current System - Standard Track||Scottish Government proposals|
|Apply to Gender Recognition Panel||Apply to Registrar General|
|Medical evidence required||No medical evidence required|
|Live in acquired gender for at least 2 years||Live in acquired gender for at least 6 months|
|Make a statutory declaration||No change|
|Offence to make a statutory declaration||No change|
|No specific offence for false application||Specific offence for false application|
|Surgery not required||No change|
Equality Act 2010:
|Current||Scottish Government proposals|
|Single sex exceptions for services and facilities||No change|
Exceptions for occupational requirements in relation to work. There is a general exception; an exception for religious requirements; an exception for the UK armed forces and an exception for employment services.
|Single sex exception for communal accommodation||No change|
Provisions in relation to sport, allowing restrictions on trans people participating in sport if necessary to uphold fair competition or safety of competitors.
|Exception in relation to insurance||No change|
|Exception in relation to celebrants solemnising the marriage or registering a civil partnership of a person who has acquired their gender under the 2004 Act.||No change|
|Protected characteristics of sex and of gender reassignment||No change|
The Rights of Trans People:
|Current System||Proposed System|
|Can change documents e.g. passport and driving licence||No change|
|Legally recognised with GRC||No change|
|Can change birth certificate with GRC||No change|
|No surgery required to obtain GRC||No change|
|Access as required to medical treatment||No change|
The Scottish Government has published the following:
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