At Stage 2 of the Gender Recognition Reform (Scotland) Bill Scottish Labour MSP Michael Marra lodged two amendments that sought to align the process for obtaining a gender recognition certificate (GRC) more closely with that for passports, by requiring a counter-signatory (see Annex 1 below). The amendments were discussed at the Equalities, Human Rights and Civil Justice (EHRCJ) Committee earlier this week, on 15 November.
The amendments should not have been controversial. One of the most effective arguments used to persuade politicians to support the introduction self-declaration for gender recognition certificates (GRCs) is that this would bring the process for changing a birth certificate into line with that for all other key identity documents. We illustrate below how this argument has been used over a long period, with particular reference to passports. We also describe the process for switching the male/female marker on a passport.
We then show how, both during and after the EHRJC Committee session, the passport argument was not just abandoned, but upended, by key advocates of self-declaration in Scotland. We argue that what happened here finally brought to the surface that a project pitched to politicians and others as being about a practical administrative tidying-up process is in fact about putting into legislation a belief, in as pure a form as possible.
Passports as a model to follow
Groups advocating for self-declaration for GRCs have repeatedly held up passports as an example of an identity document that can be easily changed, with which GRCs should be brought into line. The earliest such statement we have quickly found from the Equality Network/Scottish Trans (EN/STA) is from 2013. A selection of such statements are set out below:
‘In a bid to head off criticism of the plans in Scotland and England, [James Morton] added: “Making it easier to change birth certificates will not affect how trans people access single-sex services. They can already use their self-declared gender on their passport or driving licence.”‘The Sun. 23 July 2017
… for decades trans people’s lived sex has been recognised in many contexts in Scotland, without the need for medical treatment or for a gender recognition certificate. For example, trans people can get a passport and driving licence in their lived sex…. This has been happening for decades without problem.ST/EN, Stonewall Scotland, LGBT Health and Wellbeing to Fiona Hyslop MSP Cabinet Secretary for Culture, Tourism and External Affairs, 2 September 2019
It is proposed to bring the process for birth certificates in line with that for other identity documents such as passports.EN/ST, LGBT Youth Scotland and Stonewall Scotland Statement welcoming consultation of reform of the Gender Recognition Act 9 November 2017
Passports, driving licences, medical records and employment records are already changed by self-declaration when a person starts transitioning.
It would remain more difficult for a trans person to change the sex on their birth certificate than it is for them to change the sex on their driving licence, medical records, passport, bank accounts and other identity documents.EN/ST, Stonewall Scotland, LGBT Youth Scotland, LGBT Health and Wellbeing Statement welcoming consultation on a draft Bill to reform the Gender Recognition Act, 17 December 2019
a trans man or woman can get a passport and a driving licence in their lived sex. But [changing a birth certificate] …is currently a complex and costly legal process.EN/ST 23 September 2019 Letter to members of the Equalities and Human Rights Committee
James Morton [said] “What we are asking for is for it to be closer in alignment to how you change your passport”STV News 20 February 2020
…they can update these documents swiftly and simply. For lots of trans people, seeing our new name printed on our driving licence, or being able to hand over a passport that has switched the “F” to “M’ when ordering a drink in a pub can help us feel more happy and confident doing normal, everyday things.Vic Valentine, Scottish Trans Herald 29 January 2020
All trans, including non-binary, people, are able to socially transition, by taking steps such as changing their names, updating other identity documents (such as a passport, driving licence, and NHS medical records) and coming out to friends, family and at work, before obtaining legal gender recognition…Equality Network/Scottish Trans submission to 2019 Scottish Government consultation
Trans people can already change their name and sex on identity documents such as passports and driving licences, and can access a wide range of single-sex services and spaces without a gender recognition certificate. The reform will not affect this.Scottish Trans, Equality Network, LGBT Youth Scotland, Stonewall Scotland, and LGBT Health and Wellbeing Statement welcoming introduction of Gender Recognition reform (Scotland) Bill 3 March 2022
… all their day-to-day identity documents, such as driving licence and passport, can be updated through self-declaration to reflect their gender identity, but where their birth certificate remains in contradiction to how they live and identify….Vic Valentine, Scottish Trans 2022 submission to EHRCJ Committee call for views on the GRR(S) Bill
trans people can already “self-declare” a change of sex on their passport and driving licence, and doing so does not require a GRC or a diagnosis of gender dysphoriaScottish Trans booklet sent to all MSPs: FIVE REASONS TO SUPPORT REFORMIN THE GENDER RECIGNTION ACT October 2022
The first part of this document provides these quotes in their fuller context. The argument has also been made by many other organisations: the second part of the document provides examples of that.
The process for passports has also been held up by the Scottish Government as a benchmark. On introducing the current Bill in March 2022 Cabinet Minister Shona Robison stated:
“Those without a GRC will often have made other changes, including to passports, driving licenses and other official documentation. The Bill’s reforms will move the law closer to how people are already living their lives.”Statement by Cabinet Secretary for Social Justice, Housing and Local Government Shona Robison 3 March 2022
And in the run-up to the 2021 election, by Scottish Green MSP, now government minister, Lorna Slater said:
“people should absolutely be able to identify their gender, as they do already on their passport, on their driver’s licence. We’re not proposing to change that, that’s already in law, you can change the gender on your passport or your driver’s licence to make it match your self-identified gender.”Lorna Slater, Sky News The Sophy Ridge Show 25 April 2021
The passport process
The EN/ST website directs anyone wanting information on ‘how to update the name and gender on their passport’ to the advice issued by the UK Passport Office ‘for transgender and transsexual customers’.
This advises that if a person does not already have a GRC or a new birth certificate (which is only available with a GRC) they must provide ‘a letter from your doctor or medical consultant confirming that your change of gender is likely to be permanent, and evidence of your change of name such as a deed poll.’
More detailed guidance for Passport Office staff states that the medical professional must confirm ‘they know the customer enough to make a diagnosis [Note: this does not however mean a medical diagnosis of any sort is required] and, in their opinion, the change is likely to be permanent.’ A non-exhaustive list of approved specialist medical professionals is given: one trans advocacy organisation publishes a sample letter that can be used by a GP.
This internal guidance reveals there is also a track for those who cannot provide a medical letter. If ‘the customer identifies as a crossdresser’ they may instead submit an application which includes a statement ‘that they permanently use the preferred identity’. This application must be ‘countersigned ‘. The possible counter signatories are those who are allowed for passport applications more generally. This means they must have known the applicant for at least two years, ‘be able to identify you, for example they’re a friend, neighbour or colleague (not just someone who knows you professionally)’, and be ‘a person of good standing in their community’ or work in (or be retired from) a recognised profession: this covers a long list of professional occupations.
The principle is clearly that a change of M/F marker on a passport needs to involve someone to whom the applicant is already well-known, ideally through a medical relationship, but otherwise having sort of standing in the community.
In addition, those without a GRC must also provide ‘evidence they are using the new gender for all purposes (for example bank statements, utility bills or payslips)’ and formal evidence of a change of name. The EN/ST site advises that to demonstrate a change of name formally as required for a passport “the easiest and cheapest method is a statutory declaration.”
This is the process described by EN/ST as ‘without problem’, ‘swift and simple’, and ‘self-declaration’ and contrasted with one which is ‘costly and complex’.
The Marra amendments
As noted above, on 15 November the EHRCJ Committee considered amendments put down by Michael Marra MSP (shown in full at the foot of this blog, together with the section of the Bill to which they refer).
Taken together, the effect of these would have been to require an application for a GRC to be accompanied by a signed statement from another person (‘the counter-signatory’) who has personally known the applicant for at least two years and works in a specified recognised profession, as set out in the amendment, or has retired from one. The signed statement would have to confirm that the applicant, to the best of the counter signatory’s knowledge,
- is aged at least 16,
- has lived in the acquired gender throughout the period of three
months ending with the day on which the application is made
- intends to continue to live in the acquired gender permanently.
This evidently intends to echo the process for changing an M/F marker on a passport, by involving someone to whom the applicant is already well-known, with some sort of standing in the community. The list of suggested professionals includes some medical ones but mainly comprises ones also found on the much wider list used for passport counter-signatories.
Speaking to the amendments, Marra explained that his aim was to bring the proposals for GRCs more into line with that for passports, but taking account of Scottish Labour’s 2021 manifesto commitment to ‘demedicalise’ the GRC process.
“Demedicalisation, which Labour supports, is a profound change and opens up the process considerably. … As it stands, a balance must be struck and I believe that more could be done to achieve that. The effect of the amendments would be to ensure that an application is made as part of the community, rather than as a solitary individual.
I have concerns that a statutory declaration on its own could be seen as transactional because it amounts to a small fee being paid to a lawyer to witness a signature and say that current identity documents have been produced—it is not about knowing someone.”Michael Marra, SP Official Report 15 November 2022: cols. 46-47,
There would have been scope for discussion about the practical detail, and whether an even closer match with the passport model was possible. But the principle of seeking some reassurance from a third party with standing in the community, who knows the applicant, should not of itself have been controversial, given all the previous praise for the passport system.
The passport process becomes “problematic”
The reaction from supporters of self-declaration was instead strongly hostile. The relevant section of the official report is set out in Annex 2, but these extracts give a flavour:
“very problematic… is fundamentally at odds with the idea that the bill is based on—the principle of self- declaration…, it would create additional barriers to legal recognition for some trans people…. It is not appropriate for an outsider to have to confirm a person’s gender identity… I strongly urge colleagues to vote against amendments 45 and 48.”Maggie Chapman MSP SP Official Report 15 November 2022: col. 48
“goes against all the principles of the bill”Fulton McGregor MSP SP Official Report 15 November 2022: col. 49
“really problematic … not inclusive… certainly gatekeeping… against all the principles of the bill. The purpose of gender recognition reform is to make the process more progressive and easier … I do not believe that the amendments would do that”Karen Adam MSP SP Official Report 15 November 2022: col. 49
“further barriers for a person accessing their rights”Shona Robison MSP SP Official Report 15 November 2022: col. 50
The Cabinet Secretary, Shona Robison, stressed “applying for a passport does not involve making a statutory declaration”, implying the declaration should be treated as acting as substitute for the counter-signatory. A similar point was made by Maggie Chapman MSP: “passport applications do not require a statutory declaration; they simply require a witness.“
But both miss the point raised by Michael Marra: it is basic to the passport model for changing the M/F marker that it brings into the process someone who already knows the applicant and who is a known commodity themselves. The debate showed the government failing to grasp this, even though the Cabinet Secretary referred in the debate to discussions she had had with Mr Marra beforehand.
Forced to a vote
Some objections were framed as practical, for example that some applicants might not know anyone meeting the counter-signatory criteria, or anyone on it who already knew their status (although these would also be criticisms of the passport process). Mr Marra said:
“I am very keen to look for a sensible centre ground that can command the broadest possible public support. I still think that there is work to be done in this area. Taking on board those comments from colleagues, I ask members to allow me to continue to pursue conversations with colleagues in committee and elsewhere, so at this stage I ask the committee’s leave to withdraw amendment 45.”Michael Marra MSP SP Official Report 15 November 2022: col. 51
However, Ms Adam asked for the amendment to go to a vote, “because I would like to see the committee’s conclusion at this stage” (col. 51) A vote was taken, although it is unclear from the record who ‘moved’ the amendment, as is technically required. The amendment was rejected: 4 against (SNP/Green), 2 for (Conservative), 1 abstention (Labour).
Might a similar amendment be brought at Stage 3?
During the Hate Crime and Public Order (Scotland) Bill, a vote was forced on one amendment in similar circumstances, explicitly, the person forcing the vote said, to prevent the proposal being brought back again at Stage 3. The rules do not in fact work quite like this: the Presiding Officer has the final say, and an issue voted down at Stage 2 could in theory still be brought back on basis of being contentious and needing the whole Parliament to decide. However, a heavy Stage 2 defeat may be used to argue an issue has been settled.
Whether the same wrecking motivation lay behind forcing the vote here is impossible to say. Undeniable, however, is that no other withdrawn amendment has so far been subject to this treatment, suggesting that this one was seen as unusually ‘problematic’
The Equality Network/Scottish Trans position
It is not clear whether the EN/ST or other groups provided any briefing on these amendments. Ms Chapman’s comments here hint that some organisational views on the amendment might have been shared with her, but again this is impossible to say.
“In my opinion, the opinion of many who work with and support trans people, and that of trans people themselves, there is no value in requiring an additional step through countersignatures.”Maggie Chapman MSP SP Official Report 15 November 2022: col. 48
However, in a round-up of the session, the EN/ST on 16 November said:
‘We are also glad that amendments 45 and 48 [the Marra amendments] did not pass, as these would have required a counter-signatory confirming that an applicant is trans and has been living in their “acquired gender” for at least three months, which would completely undermine the Bill’s principle of self-declaration.‘Scottish Trans First Amendments Passed on GRR at Stage Two 16 November 2022
What happened here?
For years, politicians (and others) have been persuaded to support self-declaration for a GRC not least on the tidy-minded argument that it was needed to bring the process for changing birth certificates into line with all other existing documents, including passports.
We assume well-funded specialist organisations running this argument understood what the passport system required.
Now it turns out that birth certificates don’t need to be ‘brought into line’ with passports at all. It’s passports that are ‘problematic’. The sort of system that in late October 2022 Scottish Trans still thought allowed a person to ‘self-declare’ ‘a change of sex’, by 16 November ‘would completely undermine the principle of self-declaration’.
Was it assumed that no-one would go and look at this for information themselves, or if they did, would not ask why birth certificate change needed to be made even easier than passports? Was it further assumed that if the argument changed, nobody who had bought the first one would be likely to notice? Or would be too committed by then to self-declaration as a principle to be bothered? To be fair, any or all of these assumptions look likely to be proved right.
MSPs may have been reassured by the number of other third and public sector organisations amplifying the argument about alignment with passports. It might be also asked how many of these looked beyond any briefing they received from more specialist advocacy groups in this area, before repeating it to government and MSPs.
As for the Scottish Government, the Minister’s response to the Marra amendments was unusually low on a clear argument against them. It was difficult to find something in it to quote here. Given how much of it related to statutory declarations as being distinctive to GRCs, there was an odd lack of awareness that passport applications may often, on the advice of EN/ST, include one of these in relation to any change of name. A criminal penalty would be attached to a false one. If you were looking for evidence that around six years ago the Scottish Government bought a package off the shelf from somewhere else and has spent its time since proceeding with that on a form of auto-pilot, this is as good an example as any.
The reaction to the Marra amendments may look like a small story. It was understandably overshadowed by Scarfgate. But it was a critical moment in this process; the point at which it was put beyond doubt that the law MSPs are being asked to pass here is not motivated by a desire to do some administrative house-keeping.
The Gender Recognition Reform (Scotland) Bill is above all about legislating for a belief, in as purist a way as possible. It is still not clear how far the Scottish Government, Green Party members apart, understands that. Before that belief every other consideration must fall away, both for its most committed believers and, more surprisingly perhaps, for those trailing in their wake.
The likely next move, once GRA reform is through, is that attention will move to persuading the Passport Office to accept birth certificates changed using Scottish GRCs, ‘to bring passports into line with birth certificates’ in Scotland. Then, if that works here, it would hardly be reasonable to have a different system for other parts of the UK; would it? A court might even agree, and at that point, the last documentary citadel, passports, will have fallen.
Scotland may be past the point of no return here, and about to become another jurisdiction ticked off as ‘international best practice’, but perhaps at least politicians elsewhere might still benefit from noticing what happened here.
Annex 1. The Marra amendments
The amendments are shown as 45 and 48 below. The section of the Bill to which they refer (Section 8C(1)(a)) is then provided for ease of reference. Section 8A(2) to which there is a further cross reference in 8A(1) is only relevant to the Registrar General’s responsibilities and would be irrelevant to countersignatories, a point which could be dealt with if needed by a minor technical change to amendment 48.
Annex 2. Scottish Parliament Official Report: extracts
Maggie Chapman: I find Michael Marra’s amendment 45 and 48 to be very problematic. One of the key principles of the bill is that of self-declaration: that trans people should be able to get a gender recognition certificate by a process of self-identification. More than two thirds of us agreed to that in the stage 1 debate a couple of weeks ago. However, amendment 48 would require a person from a listed recognised profession who has known the applicant for at least two years to countersign the trans person’s application. That is fundamentally at odds with the idea that the bill is based on—the principle of self- declaration. In addition, it would create additional barriers to legal recognition for some trans people.
I say for the avoidance of doubt that statutory declarations are not something that you can make to a friend or a neighbour on a whim. They are sworn statements made under oath and witnessed by a justice of the peace, local councillor or notary public, and making a false statutory declaration carries a sentence of up to two years in prison. That is already a significant and serious step. In my opinion, the opinion of many who work with and support trans people, and that of trans people themselves, there is no value in requiring an additional step through countersignatories.
Michael Marra compares the matter with the passport application process, but passport applications do not require a statutory declaration; they simply require a witness. It is not appropriate for an outsider to have to confirm a person’s gender identity. It could also be difficult for more socially isolated trans people to find someone in a recognised profession that is listed in amendment 48 who has known them for two years. I do not think that that should prevent them from obtaining legal recognition of who they are. I strongly urge colleagues to vote against amendments 45 and 48.
Fulton MacGregor: Although they are well intentioned, I am unable to support Michael Marra’s amendments 45 and 48. I do not think the comparison with the passport process is a good one. As I mentioned earlier, the core purpose of the bill is to make the process easier for trans people. Michael Marra suggested that the amendments would raise the bar for bad-faith actors. We have had a discussion about bad-faith actors. We need to use stages 2 and 3 to further consider the issues, as happened with Pam Duncan-Glancy’s amendment in the previous group, and we need to do more on bad-faith actors. However, Michael Marra’s amendments raise the bar for all trans people and goes against all the principles of the bill, on which the committee has taken a lot of evidence and produced a stage 1 report. I will not support amendments 45 and 48.
Karen Adam: I will be voting against Michael Marra’s amendments 45 and 48. They are really problematic, in that they are very middle-class focused. We have to look at the variety of people who will come forward for a GRC. The amendments are not inclusive of people from various different backgrounds. Sometimes we have to be careful when we say the word “safeguarding” when, in fact, we are talking about gatekeeping. That is what I feel is involved in the amendments. It is certainly gatekeeping, and what is proposed is against all the principles of the bill. The purpose of gender recognition reform is to make the process more progressive and easier for trans people to obtain a gender recognition certificate. I do not believe that the amendments would do that, so I will vote against them.
Shona Robison, Cabinet Secretary: [describes the application process and what a statutory declaration is]
I welcomed the discussion that I had with Michael Marra about his amendments. However, I
consider that the statutory declaration is sufficient. Michael Marra’s amendments would not materially add to the requirement to make a statutory declaration; indeed, as others have said, they would be further barriers for a person accessing their rights, with a prescriptive list of recognised professions in amendment 48.
I have concerns about the countersigning requirement and how it might work in practice. For example, if an individual has been living in their acquired gender for a long time, that might require them to disclose their trans status to someone whom they have known for years who may be completely unaware of that.
I understand that applying for a passport involves a countersignatory process. However, applying for a passport does not involve making a statutory declaration. As I said, that statutory declaration could well require photographic identification, such as a passport or a driving licence.
Finally, the statutory declaration is clearly a higher threshold, given that criminal offences are associated with it.