The Gender Recognition Act 2004 (GRA) at present has two elements. It specifies what characteristics a person must already have to be entitled to apply for a Gender Recognition Certificate (GRC) (i.e. what they must be), and separately, what they must do to obtain one.
In moving to a self-declaration model, the Scottish Government plans to rely simply on actions taken during the application process to differentiate between people who are and are not transgender, in contrast to the current model. This post looks in detail at the legal changes proposed by the Scottish Government, and how these differ to the current law.
1. Required characteristics
The current criteria covering what characteristics a person applying for a GRC should have are in the Gender Recognition Act 2004 at section 1(1) and section 2(1)(a) and (b), as shown below:
(1) A person of either gender who is aged at least 18 may make an application for a gender recognition certificate on the basis of—
(a) living in the other gender, or
(b) having changed gender under the law of a country or territory outside the United Kingdom.
(2) In this Act “the acquired gender”, in relation to a person by whom an application under subsection (1) is or has been made, means—
(a) in the case of an application under paragraph (a) of that subsection, the gender in which the person is living, or
(b) in the case of an application under paragraph (b) of that subsection, the gender to which the person has changed under the law of the country or territory concerned.
(3) An application under subsection (1) is to be determined by a Gender Recognition Panel.
For a domestic applicant, Section 1 requires that a person is at least 18, if they wish to apply for a GRC “on the basis of living in the other gender”. The further characteristics which entitle someone to be granted a GRC are a diagnosis of gender dysphoria and two years in living in the acquired gender. These are given legal effect by Section2 (1)(a) and (b) which set out conditions which the Gender Recognition Panel (GRP) should be satisfied apply. The centrality of these additional tests to the rationale for the current Act is clear from the report of the Joint Committee on Human Rights which examined a draft of the legislation at Westminster in 2003.
Scottish Government draft Bill
The Scottish Government’s draft Bill also includes a list of required characteristics. The draft Bill deletes all references to the GRP, so there is no equivalent to the current Section 2. The list below is the complete description of the pre-existing characteristics required of applicants by law.
Applications to the Registrar General for Scotland
8A Persons who may apply to Registrar General for Scotland for gender recognition certificate
(1) A person of either gender may apply to the Registrar General for Scotland for a gender recognition certificate on the basis of living in the other gender if the person—
(a) is aged at least 16, and
(b) meets the condition in subsection (2).
(2) The condition is that the person—
(a) is the subject of a Scottish birth register entry, or
(b) is not the subject of such an entry, but is ordinarily resident in Scotland.
(3) In this Act, “Scottish birth register entry” means an entry containing a record
of a person’s birth or adoption—
(a) in a register kept by the Registrar General for Scotland, or
(b) of which a certified copy is kept by the Registrar General for Scotland.
(4) For the purposes of this Act, if a person is the subject of more than one UK
birth register entry, the person is the subject of a Scottish birth register entry if
the person’s most recent birth register entry is a Scottish birth register entry.
Although as before there is a reference to a person applying on the basis of “living in the other gender”, none of the specific characteristics a person must have in Section 8A relate to their transgender status. At the strictly technical level, anyone aged 16, born or resident in Scotland, meets the criteria in 8A (1) and (2), in terms of their personal characteristics. But clearly the Scottish Government does not intend that anyone could apply for a GRC. Instead, the law proposed for Scotland departs from the existing GRA model by making all the formal requirements related to being transgender part of what a person declares during the applications process, as described below.
2. Required actions
The current criteria covering what actions a person has to undertake are in Section 3, as shown below (further subsections of Section 3 not shown below deal with additional rules for overseas applicants and people who are married or in civil partnership, not considered here).
(1) An application under section 1(1)(a) must include either—
(a) a report made by a registered medical practitioner practising in the field of gender dysphoria and a report made by another registered medical practitioner (who may, but need not, practise in that field), or
(b) a report made by a [registered psychologist] practising in that field and a report made by a registered medical practitioner (who may, but need not, practise in that field).
(2) But subsection (1) is not complied with unless a report required by that subsection and made by—
(a) a registered medical practitioner, or
(b) a [registered psychologist], practising in the field of gender dysphoria includes details of the diagnosis of the applicant’s gender dysphoria.
(3) And subsection (1) is not complied with in a case where—
(a) the applicant has undergone or is undergoing treatment for the purpose of modifying sexual characteristics, or
(b) treatment for that purpose has been prescribed or planned for the applicant,
unless at least one of the reports required by that subsection includes details of it.
(4) An application under section 1(1)(a) must also include a statutory declaration by the applicant that the applicant meets the conditions in section 2(1)(b) and (c).
Section 3 of the current Act introduces the idea of a statutory declaration, as part of the evidence of experience to date of living in the acquired gender and intention to continue doing so. This must cover the period already spent living in the acquired gender and future intentions. Section 3 also sets out in detail how the assessment of medical diagnosis of dysphoria must be demonstrated.
In addition, it introduces rules about demonstrating what general treatment a person has had: Section 3(3) requires details of any treatment to be submitted. Section 3(3) is an odd provision, as Section 2 requires no treatment or plans for any, and is the source of much of the criticism of the process as being too intrusive, expensive and hard to meet. A separate blog discusses it here.
Scottish Government draft Bill
The Scottish Government’s draft Gender Recognition Reform Bill also includes a list of required actions. These are set out in Section 8C below:
8C Grounds on which application to be granted by Registrar General for
(1) The Registrar General for Scotland must grant an application under section 8A(1) if—
(a) the application includes a statutory declaration by the applicant that the
(i) is aged at least 16,
(ii) meets the condition in section 8A(2),
(iii) has lived in the acquired gender throughout the period of three months ending with the day on which the application is made, and
(iv) intends to continue to live in the acquired gender permanently, and
(b) the application and the notice of confirmation under section 8B(3) comply with the requirements of—
(i) section 8D, and
(ii) any regulations made under section 8U(1)(d).
(2) The Registrar General must reject an application under section 8A(1) if not required by subsection (1) to grant it.
(3) In this Act, “the acquired gender”, in relation to a person who is applying or has applied for a gender recognition certificate under section 8A(1), means the gender in which the person is living when the application is made.
It is only at this point that transgender status would be formally brought into the process, through the action of making a declaration that you have lived in the acquired gender for at least three months, and plan to so “permanently” (reframing the “until death” wording of the current Act).
The act of making the declaration therefore becomes the sole qualifying criterion related to being transgender. Making the declaration honestly of course also requires that a person sincerely believes that they have lived for three months in the acquired gender (and intends to continue doing so).
At the moment the GRP has to satisfy itself about the reliability of the statutory declarations it receives, as well as other evidence. Under the Scottish Government proposals, there is no parallel scrutiny of declarations, which appear to be taken at face value unless and until they can be demonstrated to be deliberately false. Asked to define the circumstances in which someone would be regarded as having fraudulently claimed to be transgender, the Scotttish Government has stated that this would be for the courts to determine. The only specific examples it has offered are, “the spouse or civil partner of the applicant saying they believe the application to be fraudulent; information being passed to the Registrar General suggesting the application was fraudulent; and the applicant boasting they had made a false declaration or application to test the system”. The basis on which the first two would be judged remains unclear.
Section 8U(1)(d) does allow the Registrar General for Scotland to set additional rules about the information or evidence to be provided by applicants. This provision, tucked away and not discussed in the consultation paper, may be intended as a way of leaving room to tighten the process, by specifying in more detail how someone backs up their statements and what they are obliged to declare. So it may possible that some additional required actions could be introduced later using this power. However, these would not be cemented into the Act, and how far the Registrar General could go in adding extra requirements is unclear: any regulations would be open to challenge by judicial review.
Section 8D deals with additional conditions for those who are married or in a civil partnership (as before not discussed further
The difference between sections 1 to 3 of the current Act, and 8A and 8C of the draft Bill are at the heart of the proposed change.
The law at present first requires people to be something, which is a person with gender dysphoria and two years’ experience of living in their acquired gender. They must provide evidence of each of these (and also, even though no physical change is required, of their history and plans for physical changes, if any). They also have to do something, which is to make a statutory declaration about their past two years and future intentions, and provide other evidence to support their application. The GRP is then under a duty to assess all these things, including the plausibility of the statutory declarations.
The Scottish Government plans remove any explicit objective requirement for applicants to have specific characteristics related to gender reassignment. Instead it plans to rest only on what a person does during the application process; that is, the act of making a declaration. The declaration of course implies someone has the characteristic of sincerely believing they have spent three months at least living in the acquired gender (however they themselves choose to define that). However, as presently drafted the Bill does not directly require that or test it, and what this would involve is not specified (even if the Registrar General may be able to set further tests).
This change reflects the conceptual shift being embraced by the Scottish Government (discussed further here). At present, a change of legal sex is available only to those who have transitioned for at least two years as a way of dealing with gender dysphoria, and can demonstrate this: as the report of the 2003 Westminster Joint Committee shows, this reflects the intention at the time that access to GRCs should be confined to a small and very specific group.
The Scottish Government instead believes that there should be a more general and widely available right for a person’s inner sense of self to be reflected in law, and that individuals themselves are the only valid witness to that. It does not follow that logic through completely: the three month period adds an extra layer, even if self-defined, and it does not propose to recognise any identities not currently recognised in law. Even so, under the Scottish Government’s proposals readiness to declare that at least three months has been spent living in the acquired gender, however the person themselves chooses to define that, and an intention to continue doing so permanently, would become the only distinction between someone who is entitled to seek a GRC and someone who is not.