Gender recognition reform and international developments
The current reliance on ‘international developments’ in relation to gender recognition reform is under-researched and misplaced. The Scottish Government needs to look much more critically at the precedents legislated for in other countries and to consider how gender self-declaration laws have gained traction across multiple jurisdictions, within such a limited time-frame.
In making the case for reform of the Gender Recognition Act, the Scottish Government has cited ‘international developments‘ as a ‘strong reason‘ (2019: 20) and highlighted countries that have introduced models allowing for the statutory self-declaration of sex. The Scottish Government has also drawn on the Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe in its appeal to international principles.
This proposal is in line with the approach of a number of other countries, including the Republic of Ireland, Norway, Malta, Denmark and Belgium. Where that has been done, the impact has been positive for the trans community and without a detrimental impact on other.Scottish Government 2019: 3
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 response made reference to Denmark and Ireland, the Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe, and also cited its 2017 consultation document.
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.”Question S5W-25215: Johann Lamont, Glasgow, Scottish Labour, Date Lodged: 06/09/2019
However, neither the 2017 nor 2019 consultation documents presented detailed evidence on how the law operates in other countries. The Scottish Government has also admitted that it has not been able to find research into the impact of such laws on women.
More recently, the lack of evidence in this area was highlighted in the independent analysis of the consultation responses:
The introduction of declaration-based systems in other countries listed in the consultation paper was argued to be recent and their success to be as yet unproven. It was suggested that, before proceeding on the premise that these systems represent best practice, the Scottish Government requires peer-reviewed comparison data from those countries. Further, no details are presented on how self-declaration operates in other jurisdictions, or the effects on women’s sex-based rights.Scottish Government 2021: 11
The statement in the Foreword to the consultation paper that the proposals are in line with the approach of a number of other countries, where ‘the impact has been positive for the trans community and without a detrimental
impact on others’ was also highlighted. This was described as being unsupported by evidence while, in fact, problems (for example within women’s prisons) are now coming to light in other jurisdictions. More generally, it was suggested that the Scottish Government is mistakenly interpreting absence of evidence of negative impacts as evidence of their absence.
In practice, relatively few countries have taken up statutory self-declaration since 2007. In June 2021 the Economist reported on a pushback against reform in Germany and Spain, and against the affirmation medical model in Sweden. Where statutory self-declaration has happened, exactly what rights this grants will vary, depending on how the policy has been implemented and its approach to equalities legislation.
The remainder of this post considers evidence of problems that have come to light in other countries, and how legislation has passed without adequate scrutiny or consideration for a conflict of rights.
Evidence from other countries
Despite Scottish Government assurances, problems are coming to light in countries that have introduced models based on self-declaration, often attributed to legislative processes that failed to fully unpack and address the underlying conflict between rights based on gender identity, and rights based on sex.
A substantial number of reports are emerging from parts of the US and Canada of individuals with records of violent and sexual crime seeking successfully to be placed in women’s prisons using gender self declaration systems , and causing harm to women inmates.
In California, following the introduction of the Transgender Respect, Agency, and Dignity Act (SB-132) which came into effect in January 2021, requiring the Department of Corrections and Rehabilitation to ‘house a person who identifies as transgender, non-binary or intersex in a correctional facility… designated for men or women based on their preference‘, the Los Angeles Times reported that 261 housing requests were made within the space of three months. All but six asked to be housed at a women’s facility. More recently, the LA Times reported that prosecutors had filed multiple counts of indecent exposure against a registered sex offender who had sought access to the female facilities at a LA spa having asserted a female gender identity.
In Canada the impact of legal self identification is well documented, principally in relation to court cases brought about by a transwoman under the British Columbia Human Rights Code, who was refused a Brazilian wax services by female beauticians. In another Canadian case, two residents in a homeless shelter for women raised their concerns about sharing sleeping accommodation with transwomen who remained clearly identifiably male. In a statement to the media, the organisation running the shelter stated that “It is against the law to discriminate against transgender individuals. NOW Canada and other shelters in Kelowna welcome people without regard to age, race, religion and gender identity“. The organisation also noted that its shelters did not have enough space to allow transgender clients to have their own room.
In Norway Professor Marit Halvorsen (Faculty of Law, University of Oslo) has stated that legislators failed to fully consider the possible problems and conflicts arising from the legislation. Critiquing the lack of guidelines on how the law should be applied in potential areas of conflict, including access to toilets and changing rooms, prisons, hospital wards, archived records, gender quotas, and sport, Halvorsen noted, ‘in cases where both parties feel that their personal integrity is being violated, it would have been appropriate if such issues had been reflected in the preparatory work‘.
In Denmark, the first European country to introduce gender self declaration, a closed consultation took place, which elicited just nine responses (we were unable to find evidence of a public consultation). The Bill then passed through Parliament in 43 days, prompting some members to express disquiet at the legislative pace. In 2015 the national media reported that a transwoman who had made no physical changes to their appearance had attempted to use female changing rooms at a local swimming pool, prompting complaints.
In Ireland, most often quoted by the Scottish Government, a pre-legislative public consultation in 2010 secured just 40 responses. The government appears to have undertaken no prior impact assessment for women, nor put any systematic monitoring or evaluation systems in place. In ‘From medical assessment to affirmation: legal gender self-declaration in Ireland‘ (see below) by guest author Jill Nesbitt provides a detailed account of the introduction of gender recognition, and how the process was ‘deliberately kept out of the public eye‘.
There is also increasing evidence of problems within the Irish prison estate due to placement of male-bodied prisoners in the female estate and lack of judicial discretion. In 2019 the Chair of the Criminal Law Committee in the Law Society of Ireland, Robert Purcell stated that GRA reform had placed the State in an “impossible position” with regard to transgender prisoners.
Recent public polling in Ireland commissioned by campaign group The Countess reported that half of all adults believed that people should have the right to change their original birth certificate, but most felt it should be only once some action is taken towards reassignment via hormones or surgery.
Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe
Both the 2017 and 2019 Scottish Government consultations cite the Yogyakarta Principles (YP) and Resolution 2048 of the Parliamentary Assembly of the Council of Europe in an appeal to international principles. Both these instruments assert the existence of an inner gender identity that takes precedence over sex, while neither discusses the policy implications for any other protected characteristics.
The YP cover a broad range of rights related to sexual orientation and gender identity. In its 2021 election manifesto the Scottish Green Party, now in coalition with the SNP, set out a commitment to ‘enshrining the Yogyakarta human rights principles into Scots law‘, as part of its LGBT+ equalities agenda (see further here). At their core, is a belief that self-declared gender identity, 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’, should override sex as a basis for policy and law. Principle 31 on legal recognition, goes further. The opening section states that ‘Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics‘, and then calls to ‘end to the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licences, and as part of their legal personality‘.
CoE Resolution 2048 is symbolic in status and creates no obligations on member states. The YP have not been adopted in any treaty, create no obligations on governments, nor have been relied on in any rulings in this area by the European Court of Human Rights. Campaigners have nonetheless used these soft law instruments to secure normative change. In ‘Queering Human Rights: The Yogyakarta Principles and the Norm That Dare Not Speak Its Name‘, Thoreson describes how, by dint of the ‘strategic, inventive ways that activists have framed and deployed them from multiple points of entry in the global system‘ the YP took hold:
within a matter of two years, the Principles [were] widely cited by state and non state actors alike, despite the fact that they were formulated privately by a cadre of experts and not by any official or quasi representative body.Thoreson, 2009; 324, 326
Robert Wintemute, Professor of Human Rights Law at Kings College London and one of the co-authors of the original Principles recently stated that the international human rights community got it wrong: that women’s rights were not considered during the meeting where the principles were written and that the authors failed to consider that fully intact males would seek to access female-only spaces.
International reform ‘under the radar’
A report prepared by law firm Dentons (2019) identifies strategies used by campaigners to help secure reform in other countries. These include intervening early in the legislative process to shape the Government agenda, tying campaigns to more popular policies that enable reform – in the report’s words, to operate ‘under the radar’ – citing equal marriage legislation in Norway, Denmark and Ireland, and de-medicalising campaigns. Campaigners are also advised to avoid media coverage, which is attributed to the stalling of reform in the UK.
The most important lesson from the Irish experience is arguably that trans advocates can possibly be much more strategic by trying to pass legislation “under the radar” by latching trans rights legislation onto more popular legal reforms (e.g. marriage equality), rather taking more combative, public facing, approaches. Another lesson is that compromise is a double-edged sword. Compromise on legal gender recognition for young trans persons was critical to getting the legislation passed in Ireland, but it might take years to revise the legislation to render it more favourable to trans youth.IGLO/Dentons/Thomson Reuters Foundation 2019: 55
The following journal article, ‘Reform under the Radar’ published in the Edinburgh Law Review, discusses the strategies used by campaigners to advocate for self-identification in more detail.
‘Examining the process by which a group of European countries have adopted laws enshrining self-declared gender identity raises questions about the pace and visibility of these changes, and the strategies used to achieve reform… Scottish policy makers and legislators [should] look more critically at the precedents legislated for in other countries and how gender self-declaration laws have gained traction across multiple jurisdictions, particularly within such a limited time-frame, before following the same path.’Murray, Blackburn and Mackenzie, 2020