GRA reform and ‘International Best Practice’

Key points

  • The Scottish Government has cited alignment with ‘international best practice’ as a rationale for reforming the Gender Recognition Act to allow for the statutory self-declaration of sex as a matter of law [or statutory self-declaration of gender] (“self-declaration”). 
  • The Scottish Government cites the Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe as setting the standard for international best practice. Both derive their recommendations from a particular understanding of the nature of sex and identity. 
  • The Yogyakarta Principles do not have any official standing in international law and have not been adopted in any treaty, while Resolution 2048 creates no legally binding obligations on member states.  
  • Neither the Yogyakarta document nor the explanatory memorandum on Resolution 2048 contain any discussion of the implications of adopting the principles for any other protected characteristic, including sex.
  • Relatively few countries have taken up statutory self-declaration since 2007. Where this has been done, exactly what detailed rights this grants in any particular state will vary, depending on how the policy has been implemented in detail and its broader approach to equalities legislation. 
  • The Scottish Government is bound to observe findings of the European Court of Human Rights. ECtHR law does not require states to introduce self-declaration either for documentary or legal status change. UK law appears to be fully compliant with current ECtHR rulings in this area. 
  • In 2017 the ECtHR upheld the right of states to require a diagnosis of gender dysphoria as a condition of granting documentary or legal status change. The Scottish Government de facto position is therefore that the European Convention on Human Rights as recently interpreted falls below international best practice.

Background

1.  The Government’s Programme for Scotland 2019/20 states that the Scottish Government will ‘consult on the detail of a draft Gender Recognition Bill by the end of this year, setting out our proposals to reform the current process of obtaining a Gender Recognition Certificate and how we will bring Scotland into line with international best practice’ (2019: 18). The Scottish Government consultation document on GRA reform also cites alignment with ‘international best practice’ as a rationale for reform:

‘…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.’ (Scottish Government, 2017: 3.26)

2.  In September 2019 the Scottish Government was asked in a written parliamentary question which countries demonstrated international best practice, and if it would provide details of the research and analysis it had undertaken that informed its view. The Scottish Government responded that:

“A number of jurisdictions – including Denmark and Ireland – have legal gender recognition systems in place which do not require the applicant to provide medical evidence. The Yogyakarta Principles contain recommendations on gender recognition: https://yogyakartaprinciples.org/principles-en/.  Resolution 2048 of the Parliamentary Assembly of the Council of Europe contains provisions on gender recognition: https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=21736. The international position on gender recognition was considered in the Scottish Government’s consultation on general principles: https://consult.gov.scot/family-law/review-of-the-gender-recognition-act-2004/: please see in particular Part 3 and Annex D.” 

3.  The consultation document identifies seven countries worldwide (Argentina, Belgium, Colombia, Denmark, Ireland, Malta and Norway) with systems of self-declaration. The consultation document describes the process for a change of documentation and status in each case. It does not however, discuss in detail the practical implications for individuals of the change, in terms of exactly what wider legal rights are conferred, and whether these are limited in any context. Nor does it assess how these systems have functioned in practice. The consultation describes the arrangements in a further seven countries and two sub-national jurisdictions which use alternatives to self-declaration. Why these specific cases were chosen to illustrate alternative approaches is not discussed.

4.  This briefing note concentrates on the international legal context, particularly the status of the different international instruments quoted by the Scottish Government, and what law above the UK level appears to require. First, the briefing considers the Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe, both of which are cited by the Scottish Government as setting the standard for international best practice on the recognition of sex in law. The briefing then considers European Court of Human Rights rulings, the Convention on the Elimination of all Forms of Discrimination Against Women, and wider United Nations activity in this area. [1] 

Yogyakarta Principles

5.  The Yogyakarta Principles (2007) cover a broad range of rights related to sexual orientation and gender identity. ‘Gender identity’ is defined as:

“each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth [2], including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.”

Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity: Preamble, 2007 


[1] There is further discussion of the Scottish Government’s presentation of the international context, including Council of Europe and EU activity not mentioned in the consultation, available on the blog of independent researcher Susan Sinclair at https://scottish-women.com/2018/09/13/hoodwinked-by-the-government/

[2] The phrase “sex assigned at birth” reflects a belief that a prediction is being made at birth about the inner gender identity a person will later manifest, rather than an observation being made of whether they are female or male in reproductive terms. The phrase originates with the treatment of the very small number of people whose physical sex is ambiguous at birth, estimated to be around 7 or 8 cases in the UK per year. See: 
https://www.parliament.scot/S5_European/Inquiries/CensusBill_DSDFamilies_CTEEAS518CB33.pdf. However, in the context of Yogyakarta, and the wider advocacy for self-declaration, sex is assumed to be assigned at birth for the whole population, including all those whose reproductive physical sex is unambiguous.