Cross-border effects of GRA reform in Scotland: unanswered questions

We have written previously about the potential cross border effects of the Scottish Government’s proposals to introduce a self-declaration model of legal sex change.

In 2003, the then Scottish Executive – a Labour/Liberal Democrat coalition – considered whether to legislate separately on gender recognition for Scotland. Such an approach was rejected by ministers due to ‘cross-border anomalies’.

Giving evidence to the Scottish Parliament’s Justice Committee on 28 January 2004, minister Hugh Henry MSP said:

‘The Executive has supported a UK bill from the outset, because that method offers early compliance with the European convention on human rights. It will integrate the devolved and reserved policies that are affected by legal recognition and it will avoid cross-border anomalies.’

Hugh Henry, Justice Committe 28 June 2004

The Gender Recognition Reform (Scotland) Bill will allow those who are ‘ordinarily resident’ in Scotland, as well as UK residents whose birth or adoption was registered in Scotland, to change their sex in law via acquisition of a Gender Recognition Certificate (GRC). The draft Bill states:

The draft Bill does not provide a definition of ‘ordinary residence’ and no minimum period of prior residence either in Scotland, or any other part of the UK, is proposed. Nor does it state how or whether an individual will be expected to prove that they are ordinarily resident in Scotland at the time they make their statutory declaration.

What is also not clear is whether a GRC acquired under a self-declaration regime in Scotland will have the same legal effects as a GRC acquired under the existing regime elsewhere in the UK. The Scottish Government’s reading of the law is that possession of a GRC has no bearing on a person’s right of access to single sex spaces or services. However, the UK Government takes the opposite view. The clearest iteration of this position is manifested in the Ministry of Justice’s transgender prisoner policy which states:

”The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate/AP unless there are exceptional circumstances, as would be the case for biological women.’

Care and Management of Individuals who are Transgender, updated January 2020, paragraph 4.64.

This means that GRA reform remains relevant for UK citizens living outside Scotland, as individuals elsewhere in the UK will potentially be able to access the Scottish system for changing their sex in law.

Unanswered questions on cross-border effects

These observations raise a number of questions about how GRA reform in Scotland will affect the UK more widely, in relation to eligibility, legal effects, and spousal consent.

Eligibility

1. Will a Gender Recognition Certificate (GRC) issued via statutory declaration be available to anyone born in Scotland but living anywhere in the UK?

2. If so, will that include:

  • Scottish-born people held in prisons in other parts of the UK?
  • Anyone moving to Scotland for ‘ordinary residence’ however short?
  • 16 and 17 year olds?

3. Will an individual will be expected to prove that they are ordinarily resident in Scotland at the time they make their statutory declaration? If so, how?

4. Will people considered as ordinarily resident in Scotland include:

  • Students from elsewhere in the UK coming to Scotland?
  • 16 and 17 year olds moving to Scotland with their families?
  • Anyone moving to Scotland from any part of the world?

Legal effects

5. Will a GRC obtained by self-declaration in Scotland have the same effect in other parts of the UK as a GRC obtained under the existing arrangements for:

  • People moving from Scotland to live in other parts of the UK?
  • People visiting from Scotland?
  • Prisoners in English or Welsh prisons?
  • 16 and 17 years olds?

Spousal consent

6. What arrangements will apply for spousal consent for couples where both live in other parts of the UK where one partner is eligible for a Scottish self-declared GRC?

7. What arrangements will apply for spousal consent for couples who have separated whether the one living in Scotland obtains a Scottish self-declared GRC?

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