This blog looks at the potential UK wide effects of gender recognition reform in Scotland. Although the Scottish Government’s consultation paper does not include a specific discussion of the cross-border implications, the provisions in the draft Bill suggest that a Gender Recognition Certificate (GRC) by self-declaration could be made available to anyone who spends even a short time with their ordinary residence in Scotland, as well as to anyone living in anywhere in the UK who was born or adopted in Scotland. The Scottish Government’s current consultation on reforming the Gender Recognition Act 2004 is therefore relevant to all parts of the UK.
The impact of a GRC issued in future in Scotland
The draft Bill proposes simply to amend the existing UK-wide Gender Recognition Act so that GRCs issued in Scotland are in future provided by self-declaration rather than under the current rules, which would remain in place for other parts of the UK. It would be expected from this that GRCs obtained in Scotland would continue to have exactly the same legal effect as any other GRCs, across the UK. The consultation (at paragraph 4.02 here) proposes that a GRC based on self-declaration will be available to anyone:
- born or adopted in Scotland (regardless of where they now live); and/or
- “ordinarily resident” in Scotland.
Who could apply?
The draft Bill does not include a definition of ordinary residence. In the absence of a specific definition, the explanation of what it means to be “ordinarily resident” provided by the Scottish Government Health Directorate in guidance from 2013 may give a reasonable idea of what is intended (this appears to be the most detailed discussion of the term in any recent Scottish Government guidance). Referring to the use of the term “ordinarily resident” in secondary legislation relating to health care, dating from 1991, it says (at paras 6 to 9):
“6. …. There is no definition of the term “ordinarily resident” in the 1991 Order and the term has not been the subject of interpretation by the courts under this Order. The term has, however, been considered by the courts in other legislative contexts and is a familiar statutory concept. It is considered that the leading case law, mentioned below, would be of strong persuasive influence to any court considering the meaning of “ordinarily resident” for the purposes of the 1991 Order. Shah v London Borough of Barnet  1 All E.R. 2267.
7. In Shah, a House of Lords decision, Lord Scarman stated
“unless … it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that “ordinarily resident” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.”
8. The House of Lords therefore held that the concept of ordinary residence is when a person decides voluntarily to live in a particular place for a settled purpose. The purpose can be singular or there may be several purposes and they can be specific or general. All that is necessary is that the purpose of living in a specific place has a sufficient degree of continuity to be described as settled. The purpose of living in a particular place must therefore form part of the regular order of the person’s life.
Ordinary residence is not dictated by a period of time. Time may well be a relevant factor but it is not a determining consideration. If a person has only lived in an area for one day, they can still be ordinarily resident there. For example, a person would be ordinarily resident in an area even after one day if: they had bought a home in the area; they moved to the area to send their child to a particular school; they are renting a premises to be nearer their workplace; or they have moved to the location to enrol in a university course (this list is not exhaustive). These examples exhibit a degree of continuity in the purpose of living in a particular place and such purposes can form part of the regular, habitual mode of a person’s life. Enquiry into a patient’s ordinary residence should not call for any deep examination of the intentions of the patient. There is no need to attempt to discover what a patient’s long term future expectations or intentions are with regards to residing in the area. Patients should not therefore be subject to undue scrutiny when being asked for their ordinary residence. In the vast majority of cases the address given by the patient will usually be their ordinary residence as defined in law. Patients should not, however, be led into giving an alternative address or misleading information in order to exploit any perceived financial advantage.”
The explanation suggests that the length of time a person has already lived or intends to live in Scotland need not be relevant, as long as for that period it is for a “settled purpose” which is “part of the regular order of the person’s life”.
The consultation paper and draft Bill do not discuss how or if a person will be expected to prove that they are ordinarily resident here at the time they make their statutory declaration.
In another context, student support, a minimum time period of residence is applied: to be entitled to have their tuition costs met, in most cases a person must not only be ordinarily resident in Scotland at the start of the academic year (other than for the purpose of receiving education) but also to have lived in the UK more generally for at least three years. However, for the purpose of applying for a GRC under the proposed new Scottish rules, no minimum period of prior residence either in Scotland or any other part of the UK is proposed.
It therefore appears that the Scottish Government proposals could make a GRC by self-declaration available to anyone who spends even a short period with their ordinary residence in Scotland, as well as to anyone living anywhere in the UK who was born or adopted in Scotland.
Cross-border impact of Scottish proposals
The combination of a continuing UK-wide framework for the effect of GRCs, wherever and however they have been obtained in the UK, and population mobility means that the Scottish Government’s proposals have the potential to affect other parts of the UK.
Scottish residents granted a GRC using self-declaration will have the same GRC-related rights when visiting other parts of the UK as any other GRC holders. Meanwhile people resident in other parts of the UK could in future hold a GRC obtained by self-declaration, either by virtue of having been born or adopted in Scotland, or by having obtained one while living here. As drafted, the proposals appear to leave open the possibility that people wishing to obtain a GRC by self-declaration could qualify for one by moving to Scotland for a relatively short period, and certainly that a person who came to Scotland to attend university, or for temporary employment, before returning to another part of the UK, would meet the residency test. The Scottish Government’s current consultation is therefore relevant to all parts of the UK.