24 April 2019
We welcome the letter signed by 15 SNP MSPs, MPs and councillors as reported in today’s Scotsman, in which they call for a more cautious approach to proposed changes to the Gender Recognition Act (GRA). There are major evidence gaps on how statutory self-identification will affect other areas of law and policy, which need to be properly reviewed ahead of any legislative process. In particular, a detailed Equality Impact Assessment (EQIA) is needed to provide clarity on how the Scottish Government expects its proposals to affect the practical operation of the single-sex protections set out in the Equality Act 2010.
A measured and evidence-based approach to primary legislation does not prevent the Scottish Government responding sooner to particular concerns raised in the course of the GRA consultation. These include the level of fee for a Gender Recognition Certificate (GRC) application, which is set by secondary legislation, not the Act. The power to set the fee is in s7 of the Act and changing it requires an order which does not need a vote or debate, unless asked for by the Scottish Parliament (see GRA 2004 Section 24 (4). The fee for a GRC is currently £140, while the typical cost of a statutory declaration appears to be around £100 less. A statutory declaration is an existing legal mechanism for making a variety of witnessed declarations, such as change of name, and has been proposed by the Scottish Government as the vehicle for giving self-declaration of gender identity legal force. Only around 400 GRCs have been issued in Scotland since 2004, so the cost to government of reducing the GRC fee to something round that of a statutory declaration, while the rules are otherwise unaltered, would be very likely to be de minimis. Greater clarity on the current process of obtaining a GRC could also be provided. A large-scale survey by the UK Government Equalities Office (GEO) reported knowledge of the precise requirements was mixed among those declaring a trans identity. Of those who were aware of the process but did not have a GRC, 15% mistakenly thought that surgery was a requirement and 43% thought an interview with a Gender Recognition Panel was needed (GEO 2017: 214). The Scottish Government could also be asked what action it is taking to address concerns about waiting times for access to specialist services, which are highlighted in the GEO survey (2017: 213).
In what is currently a heated environment around issues of sex, gender and the implications for the rights of both women and trans people, we hope that today’s letter will help to bring about the full and proper debate that these matters deserve, across the political spectrum and beyond it.