Publication - Consultation analysis

Review of the Gender Recognition Act 2004: consultation analysis

Published: 23 Nov 2018

Analysis of responses to our public consultation, held as part of review of the Gender Recognition Act 2004. We were seeking views on proposals for reform of the legal gender recognition system in Scotland.

131 page PDF

1.2 MB

131 page PDF

1.2 MB

Contents
Review of the Gender Recognition Act 2004: consultation analysis
2. Reforming the legal gender recognition system in Scotland

131 page PDF

1.2 MB

2. Reforming the legal gender recognition system in Scotland

Initial view of the Scottish Government

2.1. The consultation paper explains that, subject to views expressed during this consultation, the Scottish Government proposes that Scotland should adopt a self-declaration system for legal gender recognition. This would mean that applicants under a Scottish system would not have to demonstrate a diagnosis of gender dysphoria or that they had lived for a period in their acquired gender. This would align Scotland with the best international practice demonstrated in countries who have already successfully adopted self-declaration systems and would ensure compliance with the Parliamentary Assembly of the Council of Europe Resolution 2048. The arrangements would be less intrusive and onerous from the perspective of applicants.

Question 1 - The initial view of Scottish Government is that applicants for legal gender recognition should no longer need to produce medical evidence or evidence that they have lived in their acquired gender for a defined period. The Scottish Government proposes to bring forward legislation to introduce a self-declaratory system for legal gender recognition instead.

Do you agree or disagree with this proposal?

Chart 1: Question 1

Chart 1: Question 1

2.2. A majority of respondents, 60% of those answering the question, agreed with the proposal to introduce a self-declaratory system for legal gender recognition. The majority of respondents resident in Scotland and the rest of the world agreed (65% and 71% respectively). However, respondents from the rest of the UK were more evenly divided on this issue, with 50% agreeing and 49% disagreeing.

2.3. Around 5,370 respondents made a comment at Question 1.

Comments by those who agreed with the proposal

2.4. Around 1,950 respondents who agreed went on to make a further comment. The three most frequently made points were that:

  • Gender identity is a personal matter, with gender recognition sought by individuals who know their own mind and do not make such a choice without thought and commitment. Around 1 in 4 respondents made a comment of this kind while, on a connected point, around 1 in 10 respondents argued there should be no requirement to prove one’s gender or to provide any evidence in order to have that gender recognised
  • The existing gender recognition process takes too long, is too difficult or too expensive and needs to be made easier so that it presents less of a barrier. Around 1 in 4 respondents made this sort of point
  • The existing process is demeaning, intrusive, distressing or stressful for applicants. This was raised by around 1 in 5 respondents. A smaller number of respondents made particular reference to the submission of evidence to the Gender Recognition Panel (GRP). It was suggested that the GRP is made up of people who are not trans and who may not be well informed on the issues involved. In terms of its operation, respondents sometimes noted that the GRP members do not know the individuals whose applications they are evaluating, that submitting evidence in the manner required can be intimidating or humiliating, that decisions can appear arbitrary and there is no right of appeal[3], and that the criteria on which judgements are made are not readily accessible.

2.5. Respondents sometimes related personal experiences of the difficulties they had encountered when applying for a GRC or suggested that, although they had lived in their acquired gender for many years, they had not applied for a certificate because of the costs, the intrusive nature of the process, or the difficulties in providing the evidence required.

2.6. A small number of respondents argued that the existing gender recognition process either contributes to ill health or leads to the stigmatising of trans people. With respect to health and well-being it was suggested that the delays and difficulties that individuals may experience can lead to mental ill health, including both depression and suicidal feelings. Conversely it was argued that simplification of the process may alleviate such symptoms. Similarly, while some respondents suggested that the existing process is stigmatising, discriminatory and can contribute to the harassment and abuse experienced by trans individuals, it was also argued that the reforms proposed could signal society’s acceptance of trans people and thus have a very positive effect.

2.7. Around 1 in 6 respondents argued that gender recognition is a matter of human rights or an equality issue. It was suggested that rights to privacy or autonomy may be compromised by existing procedures, and that other members of society are not required to prove their gender in any way.

Medical reports detailing a diagnosis of dysphoria

2.8. With reference to the requirements of the current application process, around 1 in 7 respondents argued that there should be no requirement to provide medical evidence, including because this contributes to medicalisation of something that is not an illness, or may put pressure on people to undergo medical procedures that they would not otherwise want at that time. A smaller number of respondents argued that being trans is not a mental illness and should not require a psychiatric assessment or diagnosis of gender dysphoria.

2.9. Practical problems in acquiring medical evidence were described, including very long waiting times for appointments at Gender Identity Clinics and some GPs who, respondents feel, do not understand, or are not sympathetic to, the issues involved.

2.10. A smaller number of respondents suggested that the reasons why individuals do or do not want to undergo medical transition should not be relevant to the recognition of their correct gender.

Living in the acquired gender for two years

2.11. The current requirement to provide evidence of living in the acquired gender prior to application for a GRC was seen as very difficult for some or as risking trans people being exposed to prejudice or verbal or physical abuse. Around 1 in 10 respondents raised this issue, with illustrations including problems created when an individual’s personal documents are inconsistent, or do not match the gender presented, meaning that they are forced to reveal their status when they would not otherwise choose to do so. Further, it was argued that the concept of ‘living in’ a gender is requiring someone to perform or conform to a cultural stereotype.

Existing use of self-declaration

2.12. A small number of respondents suggested that the introduction of a self-declaration system would bring Scotland in line with international best practice or that, in countries where already introduced, self-declaration has worked well and with minimal evidence of abuse.

2.13. It was also suggested that self-declaration of gender is already the working practice within many organisations. A Women’s Group and a Third Sector Support Organisation respondent that provide support services for women who have been victims of rape, sexual abuse or domestic abuse noted that they operate on a self-identification basis and that this will not change, irrespective of the Scottish Government’s decision. Another Women’s Group respondent stated that they were not aware of any women’s organisation within their network which required to see a birth certificate in order to access services or membership.

2.14. It was also noted that self-declaration of gender is already permitted when amending other documents such as a driving licence.

Comments by those who did not agree with the proposal

2.15. Around 3,340 respondents who did not agree went on to make a further comment. The two most frequently raised issues were closely associated and concerned:

  • The potential impact on women’s safety if their safe spaces are compromised
  • The risk of abuse of the proposed system, particularly in relation to safe spaces.

Women’s safe spaces and the risk of abuse

2.16. The most frequently raised issue was that self-declaration may pose a risk to women’s safety in spaces including single sex spaces such as toilets, changing rooms, hospital wards and refuges. In total, around 1 in 2 respondents who did not agree with the proposal and made a comment raised this issue, sometimes adding related concerns for the welfare of young girls. Respondents from Scotland were less likely to raise this issue than those from elsewhere.

2.17. The second most frequently made suggestion, often associated with the previous point, was that the proposed self-declaration system may be open to abuse, exploitation or false declarations. Around 4 in 10 respondents made a suggestion of this nature, with respondents from outside Scotland again more likely to raise the issue.

2.18. Where respondents explained their concerns, it was often to suggest that the proposal would allow ‘any man’, ‘predatory men’ or ‘biological men’ to gain access to women’s spaces where they could pose a potential threat to women’s safety. It was suggested both that this access could be achieved by fraudulent declarations by individuals with malicious intent but also that, since it would not be permissible to challenge anyone over their gender status, there would be nothing stopping men accessing women’s spaces without the need to make any declaration at all. Some respondents suggested that they, personally, are happy to share such spaces with trans women who have transitioned fully but not with those who have simply declared themselves to be women.

2.19. Particular concerns were also raised for the victims of rape or domestic abuse who might not feel safe when close to anyone biologically male, whether they present an actual threat or not. A small number of respondents who related a personal history of abuse described their own need for access to female-only spaces in which to feel safe.

2.20. Specific concerns with respect to the safety of women in the prison system were raised by around 1 in 6 respondents, who sometimes suggested that self-declaration could be misused by sex offenders as a means of gaining access to women’s prisons. Some respondents also gave examples of specific incidences to illustrate their point or stated a view that the existing system is already being abused and argued that this is a matter of record. A small number of respondents referred particularly to the situation of women prison officers who may be required to carry out full body searches on prisoners who abuse the system and self-declare as female.

2.21. Contrary to the proposals for self-declaration, around 1 in 6 respondents suggested that there should continue to be a requirement to present medical evidence before receiving legal gender recognition or cited the need for medical support or counselling. A small number of respondents argued that the current requirement to live in the acquired gender for a period should remain, sometimes suggesting this would prove commitment or that an individual cannot know that they wish to live permanently in a different gender without experiencing it first.

Women’s rights, services and sports

2.22. Around 1 in 5 respondents argued that the proposals represent a general erosion of the identity or rights of natal women. More specific concerns were raised that trans women would be eligible to take natal women’s places on all-women short lists, on the boards of public bodies, or for other employment, quotas or awards. Respondents from outside Scotland were again more likely to raise this issue.

2.23. Although a small number of respondents acknowledged that there would be a corresponding issue in terms of spaces or provisions currently regarded as being ‘men only’, most respondents making these points described the threat as being to the safety and rights of women and girls. It was also suggested that the proposals are misogynistic, that women have not been adequately consulted and that, far from being progressive legislation, the revised Gender Recognition Act would in fact be regressive.

2.24. Around 1 in 10 respondents drew attention to potential problems for the future of women’s sport, noting issues both at professional level (where examples of trans women having a competitive advantage were cited) and at amateur levels where, it was suggested, girls could be deterred from participating if they felt themselves to be at a disadvantage when competing against those with male bodies. It was also suggested that women from some religious or culturally conservative backgrounds might effectively be prevented from participating in sport if ‘women only’ sessions or events can be attended by trans women who remain biologically male.

2.25. A small number of respondents referenced the right of women to choose the sex of those providing their healthcare or personal care services. It was argued, for example, that some women might not attend cervical screening if someone they considered to be biologically male was performing the test and that, for some elderly women, receiving personal care from a person they considered to be male could be distressing or an invasion of privacy. It was suggested that individuals must retain the right to choose to have someone of the same sex to provide such services.

Differentiating sex and gender

2.26. Further to objections on the grounds noted above, around 1 in 6 respondents suggested that the consultation paper fails to distinguish between sex and gender, or that the two words are used interchangeably throughout when they are not the same thing. It was argued that, determined by an individual’s sex chromosomes, biological sex cannot be changed, irrespective of surgery or other medical treatments. In contrast, gender was suggested to be a social construct – comprising a set of characteristics or behaviours that society has come to view as masculine or feminine. Around 1 in 10 respondents made this point, sometimes suggesting that rather than reinforcing these concepts, effort should instead be put into eradicating gender stereotypes altogether. Respondents making these comments often argued that maintaining a clear distinction between sex and gender is extremely important, and that the sex-based protections defined in the Equality Act 2010 must remain.

2.27. The need to balance the competing rights of all groups was raised by a smaller number of respondents who often argued that, while they supported the rights of trans people to be treated with dignity and respect, these rights should not take precedence over the rights of women. A small number suggested that trans people should instead be given their own safe spaces.

2.28. Irrespective of terminology used, it was argued that a person cannot change sex/gender simply because of the way they feel. It was also observed, by a small number of respondents, that self-declaration is not considered acceptable in other areas with disability being the most frequently given example. Rather, it was noted, evidence is required.

Wellbeing of trans people

2.29. A small number of respondents argued that removal of a requirement for assessment prior to gender reassignment may not be in the best interest of the individual, including because other conditions which show co-morbidity with gender dysphoria may not be diagnosed. An Other Group respondent argued that the requirement to submit evidence to the GRP ensures informed consent, which they argued to be important particularly in the light of evidence concerning people who regret a biological transition. A Religious or Belief Body respondent suggested that by making it easier to change legal gender, self-declaration may encourage earlier medical transition, again with the possibility that this may be regretted.

2.30. There were also concerns that a change to self-declaration with the removal of the requirement for medical evidence might lead to reduced funding for medical treatment, or that trans people may not be called for appropriate health monitoring appointments if there is no record of their birth sex.

Impact on other sections of society

2.31. A small number of respondents commented on the proposed extension of self-declaration to young people between the ages of 16 and 17, or to children. These topics are discussed in detail at Questions 5 and 6.

2.32. A small number of respondents objected to the proposal on the basis of their religious beliefs, often stating a view based on biblical teaching that God created man and woman, and that gender identity is not something that an individual can choose. Rather, it was suggested, the differences between the sexes underpin traditional marriage and family life, and these may be undermined by gender reassignment, with potentially negative impacts for society as a whole. The risk that women from religious or culturally conservative backgrounds could exclude themselves from some aspects of society was also noted.

2.33. The potential effects on other parts of the LGBT community were also referenced, again by small numbers of respondents who typically raised concerns that lesbians may find themselves accused of transphobia because they are not attracted to trans women. Several respondents who identified themselves as being gay suggested that, under the proposed system, they might have changed their gender and then regretted this later on.

Other issues raised

2.34. A small number of respondents, particularly Religious or Belief Body respondents, argued that the Scottish Government should not use the Yogyakarta Principles as a basis for adopting self-declaration. It was argued that these Principles have no legal basis.

2.35. Respondents also raised concerns that self-declaration will skew statistics. The implications for the monitoring of sex discrimination, for reporting of crime and for correct provision of health services if an individual’s birth sex is no longer recorded were all noted.

2.36. Finally, a small number of respondents commented on the tone of the debate around self-declaration including suggestions that people who disagree with the proposals have been threatened or have been accused of bigotry or transphobia. Others cited what they saw as lack of proper consultation with women’s groups or commented on the absence of adequate impact assessments. These subjects are discussed further at Questions 15 and 16.

Statutory declaration

2.37. A requirement to submit a statutory declaration would demonstrate that applicants intend to permanently live in their acquired gender. Therefore, the Scottish Government considers that applicants under the proposed system of legal gender recognition should have to provide a statutory declaration stating that they: are applying of their own free will; understand the consequences of obtaining legal gender recognition; and intend to live in their acquired gender until death. If an applicant were to make a statement in a statutory declaration that is false in a material particular, this would be an offence.

Question 2 - Should applicants to the proposed gender recognition system in Scotland have to provide a statutory declaration confirming they know what they are doing and intend to live in their acquired gender until death?

Chart 2: Question 2

Chart 2: Question 2

2.38. Half of all respondents who answered Question 2 (50%) thought that applicants to the proposed gender recognition system in Scotland should have to provide a statutory declaration confirming they know what they are doing and intend to live in their acquired gender until death. Respondents in Scotland and the rest of the UK were more likely to agree with this proposal (51% and 53% respectively) than those from the rest of the world (39%). Between 11% and 12% answered that they did not know.

2.39. Around 4,300 respondents made a further comment at Question 2.

Comments by those who agreed applicants should have to provide a statutory declaration

2.40. Around 1,770 respondents who agreed went on to make a further comment.

Disagreement with self-declaration

2.41. Respondents frequently reiterated concerns already discussed at Question 1, for example regarding their fears for the safety or rights of natal women, or that sex and gender are being conflated. While some noted their view that any safeguards are better than none, others expressed a view that a statutory declaration is insufficient or should be additional to other requirements. Respondents sometimes went on to describe criteria, such as providing medical evidence, that are not proposed as part of a Scottish self-declaration system. Around 1 in 3 respondents made points of this kind, with respondents from outside Scotland most likely to raise such issues.

2.42. Associated points, in each case made by smaller numbers of respondents, included:

  • That the commitment required in the declaration should be permanent, with a view to making applicants think carefully about what they are doing or to deter those who are not completely sure
  • The need to ensure that young people do not make choices they will come to regret was highlighted, sometimes associated with an argument that there must be provision for young people in particular to undo a legal change of gender without penalty. People with mental health disorders were also identified as requiring particular consideration.

Seriousness of the process

2.43. The second most frequently made point was that a change of legal gender is a very serious issue, and that a statutory declaration would ensure it is treated as such. It was also suggested that such a declaration is important in documenting informed consent. Around 3 in 10 respondents made this type of point, with residents in Scotland more likely to raise such matters. An Other Group respondent suggested that in addition to a written declaration there should be a requirement for a face-to-face meeting between the applicant and a suitably qualified person, such as a registrar.

2.44. The importance of deterring frivolous applications or guarding against other abuse of the system was raised by around 1 in 5 respondents. A specific suggestion that consideration should be given to creating a criminal offence of making a false statement was made by an Other Group respondent.[4]

2.45. Commenting on the value of a statutory declaration, some respondents argued that this would have little meaning or value, while others questioned how it could be enforced or what any penalty might be. These issues were sometimes associated with points concerning use of the term ‘acquired gender’ including querying how the Scottish Government intends to define what living in an acquired gender means in practice, with some respondents seeing this as effectively being a requirement to conform to a stereotype. Others commenting on use of ‘acquired gender’ suggested that different language should be used, with a Trans Group respondent proposing ‘declared gender’ as an alternative that suggests affirmation of an already-defined gender identity.

Period of reflection

2.46. Although not suggesting that the Scottish Government is minded to introduce a period of reflection, the consultation paper does outline similar arrangements that are in place elsewhere, and a number of respondents made comments in support of a reflection period. It was generally suggested that this should be in addition to a statutory declaration, and those who specified what they considered a suitable length of time usually suggested this should be a matter of months. An Other Group respondent suggested any reflection period could fall between an interim certificate being provided and the finalisation of the process.

2.47. A small number of respondents specifically argued that a reflection period would not be appropriate, often suggesting that trans people will have thought long and hard about legally changing their gender, and that there is no need to delay the process further. For example, a Trans Group respondent argued that such periods suggest lack of trust in the capacity of trans people to make their own decisions.

2.48. The fact that some people will change their mind was acknowledged by a number of respondents. Respondents who had previously indicated opposition to self-declaration often stated their support for allowing people to return to their birth sex. Others argued that, while the intention would be to stay in the same sex until death, this should not mean there cannot be further changes. Potential difficulties for those who are non-binary or gender fluid were also acknowledged.

2.49. A small number of respondents argued that, while considering a statutory declaration to be a good idea in principle, they had reservations about the language used, particularly with respect to reference to living in the acquired gender ‘until death’ as being too severe. However, a Children’s or Young People’s Group respondent suggested that they would prefer ‘permanently’ since being misgendered or having their former name used after death is a fear for some trans people. A small number of respondents noted that they considered the use of ‘until death’ in the wording of the declaration to be appropriate given the seriousness of the action, but also that they did not expect this to preclude making a further change in the future.

2.50. Among the small number of respondents who commented specifically on whether it should be an offence to make a false declaration, opinion was divided. While some suggested that it should be a criminal offence to deliberately make a false application, others were more cautious about the implications or suggested clarification to be necessary. For example, a Trans Group respondent suggested it should be made clear that applicants are making a declaration of their current situation and future intentions, and not necessarily that these are permanent, to avoid concern that a person may be criminalised if they apply to have their gender legally recognised again in the future.

Comments by those who disagreed that applicants should have to provide a statutory declaration

2.51. Around 1,750 respondents who disagreed went on to make a further comment. Around 1 in 3 argued that the declaration proposed would not accommodate those people who understand their gender identity to be fluid. Almost all respondents making this point had agreed with the proposal for self-declaration at Question 1. A smaller number, around 1 in 10 respondents, specifically referenced difficulties for people who are non-binary.

2.52. Around 3 in 10 argued that people may change their minds, understanding that the declaration as proposed would prevent this. These respondents included both those who had agreed at Question 1 and those who opposed self-declaration. Further points made included:

  • Arguing that an individual’s understanding of their gender may change over time or that a person has a right to identify as they choose
  • Highlighting factors that might cause a change of mind, possibly on several occasions
  • Referencing the importance of allowing people, especially young people, who realise they have made a mistake to de-transition.

2.53. Around 3 in 10 respondents commented specifically on the phrase ‘until death’ or argued that nobody can know what they will do or feel for the rest of their lives. It was suggested that expecting anyone to declare that they will adopt one gender on this basis is unreasonable. Around 1 in 7 respondents agreed that people should confirm they know what they are doing when applying to have a change of gender recognised but disagreed with a statutory declaration requiring a commitment until death. Respondents sometimes also drew a parallel with marriage.

2.54. That a declaration is not needed was argued by around 1 in 7 respondents. Those making this point sometimes also suggested that applicants know their own minds or should not be required to make a legal declaration to this effect for something that is a matter of personal choice. In connected points, smaller numbers of respondents argued that:

  • There is no evidence of misuse of the process where self-declaration is in use elsewhere and there is no reason to expect there to be a problem in Scotland
  • This is an equality issue as non-trans people are not required to declare their gender
  • A statutory declaration in the proposed wording could cause anxiety, put people off declaring their gender altogether, or is contrary to the spirit of self-declaration
  • Any process recording a legal change of gender should more closely resemble that required to record a change of name.

2.55. Around 1 in 7 respondents noted that they disagreed with self-declaration in principle, sometimes also expressing concern that a statutory declaration in the proposed wording might prevent someone from returning to their birth sex. The importance of being able to reverse a mistake, especially for young people, was often referenced. In a connected point a small number of respondents argued that the statutory declaration proposed would be meaningless or of no value.

2.56. In addition to the more frequently noted points above, small numbers of respondents queried how living in an acquired gender would be defined, how compliance could be checked, or what sanctions would be applied in the event of someone failing to do so.

Comments by those who did not know or did not answer

2.57. Around 780 respondents who did not know or did not answer Question 2 went on to make a further comment. Around 4 in 10 made statements disagreeing with aspects of the proposal for self-declaration, with respondents from outside Scotland more likely to make this type of point. Around 1 in 10 argued that a statutory declaration would have no value, while a smaller number raised questions around how compliance could be assessed or enforced.

2.58. Other frequently made points were that:

  • People may change their mind and may need to make more than one declaration. Around 1 in 5 respondents made comments of this type. Retaining the ability to detransition was often suggested to be important, with some respondents particularly highlighting issues with respect to young people
  • Use of the phrase ‘until death’ is not appropriate. Around 1 in 5 respondents made this point, while around 1 in 7 noted that they would otherwise agree with a declaration in principle
  • The fluid or non-binary nature of gender for some people makes a declaration as worded difficult. Such issues were raised by around 1 in 7 respondents.

Number of times a person can seek legal recognition

2.59. The consultation paper explains that, while the 2004 Act does not restrict the number of times that a person can apply for legal recognition of their acquired gender, other countries with self-declaration systems for legal gender recognition have different approaches to limiting the number of times that a person can seek to change their legal sex. It also sets out current restrictions on the number of times a birth certificate can be altered to reflect a name change.

2.60. It notes that, notwithstanding the proposed requirement for applicants to submit a statutory declaration, there may be concerns that applications might be submitted frivolously and that limiting the number of times that a person may apply for recognition of their acquired gender may reduce that risk.

Question 3 - Should there be a limit on the number of times a person can get legal gender recognition?

Chart 3: Question 3

Chart 3: Question 3

2.61. The largest proportion of respondents, 48% of those answering the question, thought there should not be a limit on the number of times a person can get legal gender recognition. However, 42% thought there should and 9% did not know. Respondents resident in Scotland and the rest of the world were more likely to think there should not be a limit. Respondents resident in the rest of the UK were the only group in which the number of respondents who supported the idea of a limit exceeded the number who did not.

2.62. Around 3,960 respondents made a further comment at Question 3.

Comments by those who thought there should not be a limit

2.63. Around 1,360 respondents who thought there should not be a limit went on to make a further comment. The most frequently raised points, both made by around 1 in 4 respondents, were that:

  • People and their circumstances change
  • For some people, gender is fluid, can evolve over time, is on a spectrum or is non-binary.

2.64. In both cases it was suggested any limit set might be exceeded by a small number of people, leaving such individuals with the prospect of being ‘stuck’ in the wrong gender. Small numbers of respondents also suggested, or gave examples of, external pressures that might cause a person to stop or reverse their transition, perhaps before deciding to try again at a later date. It was argued that having a limited number of changes available could put increased pressure on a trans individual, potentially to the detriment of their mental health.

2.65. It was also argued that concerns about frivolous behaviour or fraudulent abuse of the proposed self-recognition system are ill founded. It was suggested that there is no evidence of such problems elsewhere, and that imposing a limit on such grounds would be unjustified. Around 1 in 7 respondents raised these issues, sometimes adding that setting a limit might give the impression that concerns regarding frivolity or abuse are more significant than they really are. As an alternative, a small number of respondents proposed that any suspected instances of frivolous or fraudulent behaviour should be investigated individually or argued that the Statutory Declaration should be sufficient to mitigate against these behaviours.

2.66. Respondents who opposed a numerical limit on the number of times gender can be legally recognised sometimes suggested alternative restrictions of which they would or might approve. Collectively, these suggestions were made by around 1 in 10 respondents with the most common proposal being that there could be a minimum time between applications. However, where specific time frames were proposed these varied widely, from as little as a few months up to 10 years. Other ideas included that repeated requests for legal gender recognition could:

  • Trigger some sort of review, a more detailed application process, greater scrutiny, or a higher level of support
  • Have a cost implication for the applicant.

2.67. Other issues raised by smaller numbers of respondents who did not support a limit to the number of times a person can get legal gender recognition included suggestions that:

  • Legal gender is a personal matter, that it affects nobody else, and that people should be trusted to decide their own gender identity. Some respondents argued that the state has no reason to regulate gender, or that it would not matter if individuals wished to change their legal gender many times
  • Any limit chosen would be arbitrary, and sometimes that this would be contrary to the spirit of self-declaration
  • There are parallels with marriage which, although intended to be permanent when entered into, can be ended without legal sanction and repeated on an unlimited number of occasions
  • The process for changing legal gender recognition should be analogous to that for a name change. A Local Authority, H&SCP or NHS and a Trans Group respondent were amongst those who highlighted the current restriction on changing a forename only once on a birth certificate as having the potential effect of limiting the number of times a person can have their gender recognised.

2.68. It was also noted that there is no limit to the number of times gender can be legally recognised under the 2004 Act and suggested that there is no reason to do so now. Organisational respondents were particularly likely to make this point.

2.69. Finally, respondents who disagreed with self-declaration at all often made points emphasising their view of the difference between sex and gender or suggested that unlimited changes should only be allowed subject to measures (such as medical supervision) not required under the proposed new self-declaration system. Respondents who opposed self-declaration were among those who argued that individuals should always be able to return to their birth sex.

Comments by those who thought there should be a limit

2.70. Around 2,160 respondents who thought there should be a limit went on to make a further comment. Around 1 in 4 expressed a view that there should be no self-declaration process, that the consultation conflates sex and gender, that it is not possible to change sex, or that the number of changes permitted should be zero.

2.71. Other reasons given for believing that there should be a limit included that it would ensure the process is a serious one, discourage frivolous or ill-considered changes, and reduce the risk of changes being made for fraudulent or abusive purposes. Around 3 in 10 respondents raised one or more of these issues. In addition, smaller numbers of respondents suggested that to allow multiple changes risks undermining the credibility of the process or that anyone requesting multiple changes may have underlying issues that are not being addressed and would benefit from other support or counselling rather than further changes of gender.

2.72. Respondents sometimes suggested the number of changes that they considered to be appropriate. Around 1 in 8 respondents advocated only one change, although sometimes qualified this with an additional requirement (such as for a medical diagnosis) that is not proposed under the self-declaration system. Others suggesting only one change argued that this is necessary to ensure the person involved is genuinely committed to their choice and to avoid potential abuses of the system.

2.73. By far the most frequently suggested limit, proposed by around 1 in 3 respondents, was that a maximum of two changes should be allowed, with around 1 in 4 noting that this would allow an individual to change their mind and to return to their birth sex. Both points were more likely to be made by respondents from Scotland. A small number of respondents raised specific concerns regarding the welfare of children and young people, both that they may lack sufficient maturity to make such a serious decision or that, if allowed to make such a choice, it is essential that there is provision for people who have changed gender at an early age to be able to return to their birth gender.

2.74. Amongst respondents advocating two changes, an Other Group respondent argued that this would strike a balance between the rights of applicants and potential concerns that the system could be misused, while a Local Authority, H&SCP or NHS respondent suggested that two changes would be consistent with the essence of the Statutory Declaration that the applicant intends the change to be for life, while allowing some flexibility.

2.75. Only a very small number of respondents suggested other numerical limits – ranging from 3 legal changes of gender upwards, while others specified only that the limit should be more than one.

2.76. Small numbers of respondents also:

  • Proposed a restriction on the time between applications
  • Suggested additional requirements that could be implemented in the event of repeated requests for legal changes of gender. Examples included requirement for a medical assessment or the possibility of a court process
  • Highlighted difficulties for people who are non-binary or gender fluid if a limit is imposed, or suggested consideration should be given to the effect on those who do not identify with either gender
  • Suggested that resource issues, for administration costs as well as demand on NHS services – need to be considered.

Comments by those who did not know or did not answer

2.77. Around 440 respondents who did not know or did not answer Question 3 went on to make a further comment. Around 4 in 10 indicated disagreement with the proposal for self-declaration, sometimes noting that they could not answer the question as a result.

2.78. Other issues, in each case raised by smaller numbers of respondents, were that:

  • It must be possible for people to return to their birth sex
  • The issue must be taken seriously and that there needs to be some safeguards in place
  • A limit is important to deter potential abuses
  • Fears of abuse are ill founded
  • Gender can be fluid or non-binary.

2.79. An Other Group respondent suggested that a limit to the number of times a person can get legal gender recognition may be needed for practical reasons, in order to ensure timeous administration of the system.

Requirements in relation to an applicant’s place of birth or residence

2.80. The Scottish Government’s intention is that under the proposed new self-declaration system, there would just be one way of applying for legal registration of gender. The Scottish Government also intends that automatic recognition should be granted in Scotland where a person has been recognised in their acquired gender in another country or elsewhere in the UK. On that basis, the Scottish Government’s initial view is that, subject to the views expressed during this consultation, applications to the Scottish self-declaration system should be restricted to those whose birth or adoption was registered in Scotland and to people who are resident here.

Question 4 - If the Scottish Government takes forward legislation to adopt a self-declaration system for legal gender recognition, should this arrangement be open:

A) only to people whose birth or adoption was registered in Scotland, or who are resident in Scotland?

or

B) to everyone?

Chart 4: Question 4

Chart 4: Question 4

2.81. A majority of respondents, 55% of those answering the question, thought that any self-declaration arrangement should be open to everyone (Option B). Of the remaining respondents, 33% thought it should only be available to people whose birth or adoption was registered in Scotland, or who are resident in Scotland (Option A). The remaining 12% did not know. The pattern was broadly similar for those resident in Scotland. Those resident in the rest of the UK were less likely to prefer the arrangement to be open to everyone, while those in the rest of the world were more likely.

2.82. Around 2,910 respondents made a further comment at Question 4.

Comments by respondents preferring Option B

2.83. Around 1,060 respondents chose Option B and went on to make a further comment. The most frequently made point, raised by around 1 in 5 respondents, was that trans people should have equal rights to have their gender recognised irrespective of their nationality. It was also suggested that to do otherwise would be discriminatory and potentially divisive. Smaller numbers of respondents noted that they saw no reason not to make self-recognition open to everyone, while others stated that, while they were opposed to any self-declaration, if granted to anyone it should be available to everyone.

2.84. Around 1 in 7 respondents suggested that granting the right to self-declaration to everyone is the right thing to do or that, by so doing, Scotland can demonstrate liberal and inclusive values. The value of extending self-declaration to people from countries where recognition of their gender identity is not available, or where individuals may be persecuted for being trans, was referenced by around 1 in 8 respondents. A smaller number argued that, although the recognition granted in Scotland may not be acknowledged elsewhere, for some trans people just being able to have their gender legally recognised in Scotland would be of value nonetheless. A small number of others expressed a view that Scotland should be a ‘beacon’ or ‘haven’ for trans people.

2.85. The opportunity for residents of other parts of the UK to have their gender legally recognised in Scotland was seen as beneficial by around 1 in 10 respondents, while a small number of others expressed a hope that introduction of self-declaration in Scotland would encourage other jurisdictions to move forward with their own gender recognition procedures. An Other Group respondent suggested that the Scottish Government should seek to ensure that a legal recognition certificate issued in Scotland is recognised elsewhere in the UK and in other jurisdictions.

2.86. Attention was also drawn to particular groups of people who might or would be excluded under Option A. Asylum seekers and refugees were mentioned most frequently, by around 1 in 6 respondents. They sometimes also noted that trans asylum seekers may be fleeing persecution because of their gender identity. A Trans Group and an LGBT Group respondent noted that asylum seekers may not be considered legally resident in Scotland when awaiting a decision on their application for refugee status and, being unlikely to have documentation that reflects their gender identity, will not be housed in an environment appropriate to that gender identity. Yogyakarta Principle 31, stating that the immigration status of an applicant should not prevent them from applying for or obtaining legal gender recognition, was also noted.

2.87. Smaller numbers of respondents argued for inclusion of:

  • Anyone living or working in Scotland
  • Visitors
  • Migrants
  • Overseas students
  • Anyone planning to move to Scotland.

2.88. A small number of respondents also expressed a view that self-declaration should be open to all who are resident in Scotland, in some cases perhaps interpreting Option A as requiring an individual to be both resident and also to have been born or adopted in Scotland in order to be eligible.

Comments by respondents preferring Option A

2.89. Around 1,160 chose Option A and went on to make a further comment. The most frequently made point was general disagreement with the proposal to allow self-declaration of gender at all. This was raised by around 1 in 3 respondents but was more likely to be raised by respondents from outside Scotland. As a related point, around 1 in 8 respondents explained their choice as the most limited implementation on offer for a policy with which they disagreed. This point was also more likely to be made by respondents from outside Scotland.

2.90. Around 1 in 4 respondents argued that Scotland cannot, or should not try to, make laws that extend beyond its borders or that affect the lives of people who are not its own nationals. In an associated point, a smaller number of respondents argued that the proposed legislation should not be extended to other parts of the UK ‘by the back door’, without the opportunity for separate consultation or approval. The latter point was again more likely to be made by respondents from outside Scotland.

2.91. The risk of encouraging gender reassignment tourism was suggested as a reason for restricting access to self-declaration by around 1 in 4 respondents, with this point more likely to be made by respondents from Scotland. A related point concerning potential costs (most frequently to the NHS) was made by around 1 in 10 respondents who were again more likely to come from Scotland.

2.92. Smaller numbers of respondents suggested that:

  • Self-declaration of gender should be limited to residents, with varying proposals for the length of time that someone might be expected to live in Scotland before being eligible. A small number of respondents specifically suggested that the residency requirement should not be too onerous, or that there should be scope for special cases to be made, for example for asylum seekers or international students
  • Self-declaration of gender in Scotland is unlikely to be, or will not be, recognised internationally but could still potentially be dangerous for the individual concerned if under the jurisdiction of a much less liberal government
  • Unrestricted self-declaration could attract those intent on abusing the system to come to Scotland, potentially to commit crime and to put women and children at risk.

Comments by those who did not know or did not answer

2.93. Around 690 respondents selected ‘Don’t know’ or did not answer the closed question but went on to make a further comment. Around 7 in 10 noted their disagreement with the proposal for self-declaration. Several of these respondents suggested that there should have been an additional choice available at Question 4 since they felt that selecting either Option A or B might be interpreted as support for a policy that they opposed.

2.94. Much smaller numbers of respondents:

  • Questioned whether other countries are likely to acknowledge a legal gender recognised in Scotland or suggested that they are unlikely to do so
  • Suggested a risk that people would be attracted to come to Scotland in order to have their gender legally recognised
  • Argued that the rest of the UK should make its own decisions on gender recognition
  • Noted that they did not have sufficient knowledge or information to answer the question
  • Indicated their disagreement with some element of the proposition outlined as Option A, or made a statement noting those they felt should be included.

Contact

Email: Family Law