‘At least as rigorous’? Does the ‘overseas track’ imply anything about the prospects for UK recognition of Scottish Gender Recognition Certificates?

The BBC recently reported that the UK Government may not recognise Gender Recognition Certificates (GRC) issued under the Gender Recognition Reform (Scotland) Bill, when passed. This would mean for example, that a GRC applicant in Scotland who was born in England and Wales, could not update their birth certificate, which is cited as one of the main reasons for reform by supporters of the Bill.

In the context of UK recognition, the Scottish Government points to the UK Government’s acceptance of gender recognition in other jurisdictions which already have self-declaration, most recently as here.

As you know, under the current system, some of those who have obtained overseas legal gender recognition can apply in the UK by providing evidence of having changed gender under the law of an “approved country or territory” and are not required to provide any medical evidence. This route is available to persons in many countries including those that have introduced similar reforms to those proposed in Scotland such as Belgium, Denmark, Iceland, Luxembourg, Malta, Norway and Switzerland. Legal gender recognition on the basis of self-determination has therefore been recognised in the UK from many other jurisdictions
over a number of years.

Letter from Shona Robison MSP to the Chair of EHRC 30 November 2022

In October, Scottish Trans made a similar argument:

…Firstly, the UK Government already recognises birth certificates from countries and states around the world that have even more progressive processes in place for legal gender recognition than what is being considered in Scotland.

It doesn’t make any sense to us that a progressive process in Scotland is a problem, if one in the Republic of Ireland, Denmark, or Argentina isn’t. (5/13)

Note: GRCs from the Republic of Ireland, which sees much the most substantial population movement with the UK of the countries goven as examples by the Scottish Government or Scottish Trans, are not recognised in the UK.  

In response to the BBC story above, a prominent SNP activist drew the same parallel. In today’s National, Maggie Chapman MSP uses the presence of self-declaration nations on the overseas list as a reason for the recognition of Scottish GRCs.

This blog looks in more detail at the ‘overseas’ argument; namely, if the UK Government recognises self-declared legal gender recognition systems in some other countries, why not in Scotland?

What has the Scottish Government planned?

There was no discussion of Scottish GRCs requiring separate recognition in the rest of the UK in the 2019 consultation paper (see correction below)¹ or the Policy Memorandum to the Bill. Officials did however refer (wrongly, see above) to the cross- border recognition of Irish GRCs in a meeting with FPFW in January 2022, suggesting that the government was thinking about this. Officials also met the Equality Network/Scottish Trans and others in August 2021 to discuss cross-border issues. No record of the discussion is available.

The need for explicit cross-border recognition was mentioned publicly by the Scottish Government on 28 June, when giving evidence on the Bill to the Equalities, Human Rights and Civil Justice Committee. In that context, reference was made to the overseas track. As explained by the head of the Gender Recognition Unit:

“I have one thing to add. The UK Government, in considering the recognition of Scottish certificates, will obviously also need to consider how it recognises certificates and gender recognition processes that have been gone through elsewhere in the world. Currently, it has processes in place for that and a list of recognised territories. That has not been updated for at least a decade, but we understood that the UK Government was in the process of reconsidering that list. I imagine that it will want to think about that list alongside recognition of Scottish certificates, which will be quite a challenging and substantial project.”
Peter Hope-Jones, Scottish Government 28 June 2022: col. 10

Background: the overseas route

As noted above, people who have had their gender previously recognised in a defined list of countries and territories can use the overseas route to apply for a GRC in the UK.

Applicants using the overseas route do not need to provide medical evidence; however they do still need to apply to the Gender Recognition Panel (GRP). Applicants must be eighteen or over, provide a document to show that their affirmed gender is legally recognised in their home country or territory, and pay the standard £5 fee.

Statistics published by the UK Government show overseas applicants make up a very small proportion of all GRC applications: 5.6% between 2009/10 and 2022/23 (up to quarter 2) (based on Table GRP_2). The highest number of overseas applicants in any one year is 46. The highest number issued in any year was 30 and the total number granted in the period was 216 (see table below).

Year	All disposals	No. standard track applications	Standard track full GRC issued	Standard track interim GRC issued	Standard track refused	Standard track other outcome	No. overseas applications	Overseas full GRC issued	Overseas interim GRC issued	Overseas refused	Overseas other outcome
2009/10	276	267	232	17	13	5	9	6	–	2	1
2010/11	318	296	250	17	22	7	22	9	–	5	8
2011/12	311	298	256	13	20	9	13	8	–	4	1
2012/13	277	266	228	8	14	16	11	7	1	1	2
2013/14	371	354	306	16	18	14	17	12	–	2	3
2014/15	284	267	232	9	7	19	14	11	–	1	2
2015/16	373	341	302	3	19	17	12	7	–	2	3
2016/17	350	332	301	9	13	9	14	12	–	1	1
2017/18	405	365	323	8	21	13	33	23	–	7	3
2018/19	363	335	307	7	12	9	27	15	–	7	5
2019/20	403	373	338	11	12	12	27	23	–	2	2
2020/21	456	422	399	9	5	9	33	27	–	3	3
2021/22	541	507	464	6	21	16	33	30	–	2	1
2022/23 Q1	205	188	182	3	2	1	14	13	–	–	1
2022/23 Q2	275	258	242	–	10	6	16	13	–	1	2
TOTAL	5,208	4,869	4,362	136	209	162	295	216	1	40	38

Source: Table GRP_3 Applications disposed of by the Gender Recognition Panel, by type of track and outcome, Q1 2009/10 to Q2 2022/23/

Notes

• A further 39 GRCs were issued through the alternative track process in the same period. These are made under the new alternative application process, on the basis of having lived permanently in the acquired gender for 6 years or more and are married at commencement of the new gender recognition provisions. Those choosing this track only need to obtain 1 medical certificate rather than 2.
• Standard track applications are those submitted under the standard application process, on the basis of living permanently in the acquired gender for two years or more.
• Overseas track is for individuals whose acquired gender has been legally accepted in an approved country or territory outside the United Kingdom.
• The pending figure is a snapshot taken at the time of data extraction.
•  … Not available

A higher proportion of overseas applications are refused, compared to standard track applications (14% and 4% respectively between Q1 2009/10 and Q2 2022/23: see Table GRP_3). The reasons for this are not known.

Information on which countries the successful cases were from is not available. So it is impossible to say how many GRCs have been issued to people from jurisdictions with self-declaration. It is also impossible to say of the individuals from such countries, how many would not anyway have met the criteria for the existing UK scheme.

However, it is possible to be clear that, given that self-declaration systems post-date 2009, the number of people given a GRC in the UK who qualified only based on self-declaration is limited to a sub-set of the 216 GRCs granted under the overseas track in the past thirteen years.

Approved countries and territories: removals and additions 

The list of approved list of countries and territories is set out in secondary legislation, in The Gender Recognition (Approved Countries and Territories) Order 2011. The 2011 order replaced the 2005 order, adding a further nine countries and removing one. The Explanatory Notes to Section 2 of the 2004 Act state that the list is intended to reflect countries and territories which have similar systems to the one contained in the 2004 Act.

Subsection (4) provides the Secretary of State with the power to prescribe what is an approved country or territory for this purpose. This power will be used to prescribe those countries that have recognition criteria which are at least as rigorous as those in the Act.
Gender Recognition Act 2004: Explanatory notes, comment on section 2 (our emphasis)

A change to the system in one nation to make it “less rigorous”, in the words of the 2011 Order, explains its removal in 2011 (para 7.5 here). Since self-declaration systems largely began to be introduced after 2011, the list includes countries that have only brought in legal gender recognition based on self-identification, such as Denmark and New Zealand, since it was last updated. In other words, it has failed to keep up with the international roll-out of gender self-identification laws in recent years, by not removing those countries which no longer meet the UK threshold. No country has ever been added that does not meet the ‘at least as rigorous’ principle, however. To keep to the position to which the UK Government committed in 2004, the list clearly needs to be updated. The Explanatory Notes to the 2011 Order refer to an intention to review within 5 years that was not fulfilled.

Given the small numbers of overseas cases in total, the need to update the list due to any concern about impacts on the ground was obviously limited. The practical impact of the failure to update means that since 2009 somewhere between 0 and fewer than 216 people in total have obtained a UK GRC, even though they would not have qualified for one under the normal UK arrangements.

Scotland presents a very different case. Scottish Ministers anticipate they will issue hundreds of GRCs every year. Many of those will be people who will need and want UK-wide recognition.

In the first few months, or even weeks, of introducing its scheme, Scotland could easily generate as many people who have obtained a GRC using self-declaration and are looking to obtain UK-wide recognition, as the rest of the world has in a decade.

The overseas track or something else?

It is worth observing that the full logic of arguing that the UK Government should treat Scottish GRC holders the same as those from an overseas approved countries would be that they go through an equivalent to the Panel’s overseas track and obtain a UK GRC. This is not something the Scottish Government has at any stage suggested. There is no indication in the Financial Memorandum that the Scottish Government expects that as cost.

Without additional resourcing, that approach would place a considerable burden on the Panel, with further delays to all applicants. The number of applications to the Panel has risen sharply since 2021/22, following a lowering of the fee to £5, and the introduction of an online application process, as noted here:

As expected, GRP receipts have increased annually since 2017/18, particularly more recently following a reduction in the application fee in May 2021 from £140 to £5, and the move to an online application process in July 2022. This has come at the same time as an increase in both the caseload outstanding and refusals. Caseload outstanding reached 514 cases in Q2 2022/23.

Ministry of Justice, Tribunal Statistics Quarterly: July to September 2022

An unfunded addition of hundreds of Scottish applicants a year to the ‘overseas’ route would therefore put substantial additional pressure on the GRP, against a backdrop of rising applications. The only alternatives to that would be full cost recovery from individual applicants (making UK-wide gender recognition more expensive for Scots than the current £5), or the UK Government covering the cost, or an additional cost to the Scottish Government not necessarily much below the ongoing annual cost already declared there.

In practice the Scottish Government is not expecting Scottish GRC holders to have to go to the Panel. It is evidently hoping for general recognition by direct legislation at Westminster, using powers under Section 104 of the Scotland Act. At the 28 June meeting of the Committee, the Cabinet Secretary suggested that going this route was expected to be a technicality. Section 104 allows legislation to be passed at Westminster where it is “considered necessary or expedient in consequence of any provision made by or under an Act of the Scottish Parliament”.

The Scottish Government only appears to have seized on the presence of some self-declaration countries on the overseas list, as questions built about the realism of its position on wider UK recognition. It presumably did so to make a point, and to put political pressure on the UK Government. But the point does not stand up to serious scrutiny of the background to the list’s current composition, and the numbers involved, and the political pressure to be plausibly extracted therefore turns out to be questionable. The most likely practical effect of it having raised this may yet be to prompt an updating of the UK’s overseas list.

Scotland is not Argentina

The presence of some self-declaration jurisdictions on the overseas list turns out to be a red herring here, therefore. Tiny numbers of people (if any) have slipped through a gap created by political or administrative inertia, and nothing more.

Self-declaration in Scotland, affecting much larger numbers of people, resident within the UK, mobile across it from day-to-day and over their lifetimes, presents a completely different set of circumstances.

The Scottish Government has had years in which to secure agreement in principle with the UK Government. When the UK Government announced in 2020 that it would no longer move to a model based on self-declaration, the Scottish Government ploughed on as if nothing had changed.

Reasons why the UK Government might not wish to grant recognition now or in future have meanwhile accumulated. These include the Interim Cass Review expressing concern about the relationship between social and medical transition for young people, concerns expressed by the Equalities and Human Rights Commission specifically about cross-border effects of recognition, including in schools, and the UK Government receiving a strong statement of concern about the Bill from the UN special rapporteur on violence against women and girls. Drawing attention to the overseas list also brings out that the UK Government recognising Scottish GRCs, which will be open to people with gender recognition from any country in the world, would create anomalies in the treatment of people from overseas by the UK Government depending on where they lived in the UK. The UK Government will also face pressure from campaigners not introduce self-declaration “by the back door” as argued here by Fair Play For Women, with prisons and schools a focus of concern.

Faced with all that, it would obviously be a great deal simpler for the UK Government to require people resident in Scotland simply to continue to obtain a UK GRC, if they meet the current criteria, in order to obtain UK-wide gender recognition. The BBC piece and a further press story lends weight to the view that legislating on the assumption that the UK Government will commit to cross-border recognition would be high risk.

Where does all this leave MSPs wondering what a GRC issued here will mean for its holder when they move around the UK, or whether any facility will still exist for those living here to obtain a changed birth certificate, if they were born in another part of the UK?  At this juncture, it appears likely they will be left very much in the dark on these questions, when they are asked to vote on this in less than two weeks’ time.

Correction

¹ This article previously stated that ‘There was no discussion of Scottish GRCs requiring separate recognition in the rest of the UK in either consultation paper’. Thie was corrected on 25 April 2023 as the first consultation (2017) discussed separate recognition in the following terms: