On 6 January 2020 we wrote to the Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville, with a set of questions about the Scottish Government consultation on gender recognition reform and draft Bill (our original letter is shown in Appendix 1). We received a response from the Scottish Government on 21 February 2020. The text of response, and our comments on the Scottish Government position are shown below. The response itself is available here.
The responses to the first two questions are the most important. The Scottish Government disputes that it is expanding the range of people who will be entitled to apply for a GRC (even though it is removing the need for a diagnosis of dysphoria and predicts a ten-fold increase in numbers), and will not confirm whether a GRC has any effect on a person’s legal rights in relation to access to single sex services (although it acknowledges that a GRC alters a person’s sex for legal purposes).
Whether its proposals will embrace a larger, more diverse group than now and what legal rights a GRC confers which have implications for other people are absolutely fundamental to assessing the impact of the change beyond those who apply for a GRC. The answers here suggest the Scottish Government is trying to maintain a position where neither of these are issues, by relying on a denial of the effect of its own draft legislation and a reluctance to engage with the contents of the existing GRA and Equality Act. We do not think either of these are sustainable positions.
Q1. Is it Ministers’ policy position to widen the range of people who will be entitled to have a GRC compared to the current position, and if so, in what ways?
Scottish Government response: In one respect, yes. The current minimum age for applying is 18 and the Scottish Government is proposing to reduce that to 16. There is a specific question on that in the consultation.
More generally, and as set out in the Ministerial foreword to the current consultation, since the Gender Recognition Act 2004 was put in place, trans people across the UK have had the right to legally change their gender through applying for a Gender Recognition Certificate.
The Scottish Government is proposing to amend the way in which a trans person can obtain that Certificate.
The eligibility criteria for applicants under the proposed new arrangements are set out under the draft Bill.
The applicant will be required to make a statutory declaration that they have lived in their acquired gender before applying and intend to continue to live in their acquired gender permanently. This is along similar lines to current requirements on applicants to make a statutory declaration that they have lived in their acquired gender and intend to do so until death: please see section 3(4) of the current Gender Recognition Act 2004.
The factsheet we prepared when the consultation issued outlined where the proposals differ from and where they are the same as the current system for obtaining legal gender recognition.
MBM comment: The statement that “trans people across the UK have had the right to legally change their gender through applying for a Gender Recognition Certificate”, which is also included in the Ministerial forward, gives a misleading impression. Some, but not all, people who would be covered by the Equality Act’s protected characteristic of “gender reassignment” have had the right to change their gender in law since 2004. GRC eligibility is limited to those who meet the criteria at Section 2(1)(a) and (b) of the Gender Recognition Act, which limits the provision to those with a diagnosis of gender dysphoria and who have spent at least two years living in their “acquired gender”. The Scottish Government’s term “trans people” does not have a definition in law and the Scottish Government does not provide its own definition of this group in the consultation paper. However, it clearly uses it to mean a wider group than those covered by Section 2(1)(a) and (b) of the GRA. Its proposals will replace the current criteria with a requirement only to have lived in the acquired gender for three months, plus a further three month “period of reflection”, removing the need for a diagnosis of gender dysphoria.
Assuming that there is no intention to mislead, the Scottish Government appears not to recognise that its proposals will widen eligibility for a GRC beyond the group which is currently eligible, raising a question about its understanding of the changes it is proposing. To properly assess the possible impacts of any policy, it first needs to be fully understood. That is not clearly the case here.
Q2. Does acquiring a GRC give a person new legal rights of access to single sex services and occupations under the Equality Act 2010 (before any consideration is given to making specific arrangements to exclude GRC holders from these, as discussed in Chapter 5)?
Scottish Government response: A person who obtains a full GRC acquires a new gender and a new sex: section 9(1) of the 2004 Act refers. The exceptions in the Equality Act 2010 can be used to exclude trans people from single sex services and occupations, when this is a proportionate means of achieving a legitimate aim, as set out in Chapter 5 of the consultation.
MBM comment: This question requires a clear yes or no answer, so that the impact of extending access to GRCs to a larger, more diverse group can be properly understood and assessed.
The first part of the response simply summarises the GRA. The reference to a change of sex might be taken to imply the answer is “yes”, but that is then contradicted by the response to Question 3 below.
The reference to exceptions under the Equality Act is not relevant: the question specifically asks about new legal rights before those exceptions are considered.
The Scottish Government needs to be pressed to give a direct answer to this question, which is absolutely fundamental to understanding the potential impact of its change.
This paper provides further analysis and discussion of the interaction of the GRA and the Equality Act.
Q3. Specifically, what is Ministers’ understanding of the relevance of a person holding a GRC to the ability of the prison service to exercise its discretion over the accommodation of transgender prisoners, in the light of the outcome of R (on the application of AB) v Secretary of State for Justice (2009)?
Scottish Government response: The Cabinet Secretary for Justice answered an oral question in the Scottish Parliament on the housing of prisoners with a GRC on 16 January 2020. This can be found at (columns 44 and 45).
MBM comment: It is important that before the law is changed here, the impact of a GRC on the Scottish Prison Service’s discretion in the accommodation of prisoners is absolutely clear. The response to the oral question asserts, “Acquiring a gender recognition certificate does not and will not give a prisoner any new legal rights regarding the decisions that are made by the Scottish Prison Service about their accommodation”. The answer provided to our question does not explain how the Scottish Government reconciles this with the finding in the case referred to in the question, that a prisoner’s possession of a GRC was material to how their accommodation should be decided, which in turn is reflected in Ministry of Justice policy. The reasoning behind the Scottish Government’s position that a GRC has no effect on the prison authorities’ discretion still requires setting out.
Q4. What is the view of Ministers of the implications for third parties who are referring to a person who has a GRC of the judgment last month in the case of Forstater vs the Centre for Global Development?
Scottish Government response: It is not appropriate for Government to comment on a case which may be appealed.
MBM comment: The judge in the case cited appeared to imply a person’s possession of a GRC might have an effect on how other people could refer to them in any context without risking loss of certain legal protections. An appeal has now been lodged: the response here is reasonable.
Q5. What criteria do Ministers envisage the courts would use to decide whether a person has made a false declaration about having lived and/or intending to live in their acquired gender?
Scottish Government response: The judiciary are independent and the Scottish Government does not give guidance to the courts.
There are a variety of scenarios which might indicate that a false declaration has been made. These include: Where evidence is provided by a spouse or a civil partner that a false declaration has been made. Where the applicant boasts of having made a false declaration.
MBM comment: The Scottish Government is relying on the prosecution of false declarations as the main safeguard against the abuse of the proposed system. The government’s examples are limited to setting out who might provide evidence of a false declaration, but it is not clear whether the Scottish Government has any concept of what such evidence might consist of.
The central issue is whether in any conceivable circumstances a false declaration could be judged to have occurred based solely on indirect evidence from how a person behaves in the three months before making the declaration, or any time after doing so. Does the government envisage that any behaviours (for example, related to what name or sex markers are used on documents, or how a person presents) might be regarded as absolutely incompatible with having made a true declaration? If not, then an ill-motivated person can be confident they face no risk of prosecution, provided they never directly disclose their lack of good faith, even if they change little or nothing about how they live: any safeguard the provision offers would then be very strictly limited.
Although the government will not be providing guidance to the courts, the weight being placed on this point requires more clarity from the government about the circumstances in which it is assuming it could be applied.
Q6. What courses of action do Ministers understand would be open to a notary public who suspected someone was seeking to make a false declaration and do Ministers intend it to be possible to refuse to grant a GRC based on reported concerns about a possible false application?
Scottish Government response: The draft Bill provides (at section 14) that it is an offence to knowingly make a false statutory declaration. A notary public or justice of the peace who suspects a person is seeking to make a false declaration could draw the person’s attention to the offence provisions and report the matter to the police. The notary public or the justice of the peace could also write to the Registrar General.
It would be possible for the Registrar General to refuse to grant a GRC if the Registrar General considered the application to be false. The draft Bill contains review and appeal mechanisms against a rejection of an application by the Registrar General.
MBM comment: These are procedurally clear responses, although it is not immediately obvious which section of the draft bill allows the Registrar General to reject an application on the grounds it is considered to be false (the appeal provisions are in Section 9 inserting new Section 8Q). The point left open, and not covered in the question, relates to the previous point, which is how wide are the grounds on which a person taking the statutory declaration could draw the conclusion that a declaration was false and alert other people, if necessary.
Q7. How do Ministers envisage that cases of de-transition would interact with the provisions criminalising a false declaration?
Scottish Government response: The draft Bill provides that an applicant must make a statutory declaration that the applicant “intends to continue to live in the acquired gender permanently”. Whether or not an offence has been committed would depend on the applicant’s intention at the time of making the declaration.
The Scottish Government’s understanding is that de-transitioning is rare. Evidence in this area is included in the draft EQIA included with the consultation (please see points 7 to 9 under “Gender Reassignment” in Stage 2).
MBM comment: The response suggests that detransitioners would be unlikely to be caught by the false declaration provision. However, that either assumes that post-declaration behaviour is irrelevant to decisions on falsity (see above), or else that detransitioners could rely in some way on prosecutors distinguishing clearly between (a) someone who reverts to living as they did pre-transition because they always intended to and (b) someone who reverts without having intended to. It appears at first sight that the more certain protection from prosecution is available to detransitioners, the less effective a general safeguard against ill-motivated applicants the false declaration provision can be.
Even if detransition is unusual, anticipating its possible occurrence remains important: the absence of any provision for it is a weakness of the current legislation, repeated in the draft bill. The substantial medical and panel-based process involved was regarded as meaning there was no need for this in 2004. That may already have been a questionable assumption: it seems reasonable to assume that lowering the barriers to GRC access makes such cases more likely.
Although rarity is not strictly relevant to policy need, the answer draws attention to the evidence on which the SG is relying to assume minimal detransition. The sources are: Ireland (3/517 cases have sought reversal) where the system has only operated for a few years so that experience is limited; a survey where the sampling frame of LGBT people might be expected to be unreliable for finding detransitioned cases, which still found that 9% had significant regrets about their social transition; and a Swedish study (2.2% sought reversal) which covered a period where legal transition required surgery, so that the study population had gone through a more substantial process than the draft bill proposes. It is difficult to reach any reliable conclusion from these sources about the potential rarity of detransition under the Scottish Government’s proposed system. In Belgium almost half of those acquiring for a GRC equivalent have been under 24, in the few years a self-declaration system has operated.
Q8. How do Ministers intend that “ordinarily resident” will be defined for the purpose of the Act, including whether they intend this to require any minimum period of residence in Scotland?
Scottish Government response: The term “ordinarily resident” is often used in legislation and is already used in the 2004 Act: please see, for example, section 3C(6) in relation to the alternative track. In general terms, to be “ordinarily resident” in a jurisdiction, a person must live in the jurisdiction, with only reasonably short periods (eg for holidays) away. There is no requirement to be resident for a fixed period of time, but the residence must be voluntary, for settled purposes and lawful.
MBM comment: This usefully confirms that Scottish Government envisages no specific minimum period of residence in Scotland, provided the general criteria above are met.
Q9. Have Ministers undertaken any detailed analysis of the law, and its application in settings such as hospitals, schools and prisons in Ireland and other jurisdictions it considers to represent ‘international best practice’, including how far the GRC equivalent in these countries confers the same legal rights as a GRC in the UK?
Scottish Government response: On 29 November 2019, the Irish Minister for Employment Affairs and Social Protection laid a statutory report in the Irish Parliament on the operation of their 2015 Act and published the Irish Government’s response to the recommendations of a Review Group.
The report of the Review Group…notes that “Once a gender recognition certificate is issued, the person’s preferred gender becomes the legal gender for all purposes, including dealings with the State, public bodies and civil and commercial society.” (See paragraph 1.1 of the report).
As paragraph 2.3 of the report notes, the initial model proposed for obtaining legal gender recognition in Ireland “was similar to the system operating in the UK at the time (Gender Recognition Act 2004) and which continues to operate there.” Changes were then made before the Bill was introduced and during the Parliamentary passage of the Bill so that in Ireland “For those aged 18 years or over an application for a gender recognition certificate is made on the basis of a statutory declaration.”
Therefore, the system in Ireland is modelled on the current system in the UK but is based around statutory declarations: that is similar to what is proposed for Scotland.
Ireland decided to use the concept of gender recognition certificates. Practice in other jurisdictions varies but it is common for legal gender recognition in other countries to involve changes to the entry in the birth register (ie changes to the birth certificate) with rights and responsibilities flowing from that.
MBM comment: The answer confirms the Scottish Government has established that the effects of a GRC in Ireland are similar to those of one in the UK. However, given the absence of a clear answer to Question 2, it is then unclear what rights of access to settings such as hospitals and prisons the Scottish Government believes this means Irish GRC holders have.
In relation to prisons, a GRC-holding male-to-female transgender prisoner reportedly convicted of ten counts of sexual assault was placed in 2019 in Limerick women’s prison. Commenting on this, the chair of the Law Society Criminal Law Committee in Ireland said in October 2019: “The law that was enacted in 2015 did not envisage this situation, and it puts the Prison Service and the courts in a difficult position because, obviously, if somebody is self-declaring that they have to be recognised, then they have to be dealt with on that basis, even though physically, they have not have made the transformation. I don’t think the legislation envisaged the ability of transgender people to be able to self-declare; and it didn’t foresee the problems it would cause if a transgender, self-declared person was held in a mixed prison”.
It remains unclear how far the legal effects of a GRC are the same in other jurisdictions cited.
In a PQ answer relating to the separate question of effects of the policy in practice in other jurisdictions, the Scottish Government has stated that it has found none: “The review of current evidence we carried out when preparing the draft Equality Impact Assessment did not find any relevant research from [nations listed in the paper as having have introduced systems of self-declaration] in relation to [statements in the Equality Impact Assessment about impacts on women].”