When the Gender Recognition Act came into force in 2004, it was a single regime for the UK. The Scottish Executive at the time considered whether Scotland should have separate legislation, but rejected this approach due to “cross-border anomalies”.
In 2019 the UK government stepped back from its plan to bring in gender self-ID. It says the current regime achieves an adequate balance of rights.
But the Scottish Government has continued to pursue self-ID.
A draft bill was introduced to the Scottish Parliament on 2nd March. It proposes doing away with medical diagnosis in favour of self-declaration, reducing the timescale to six months, and allowing children as young as 16 to legally change their sex.
The committee overseeing its scrutiny is running a consultation which closes on 16th May 2022.
Should you answer if you are not in Scotland? Yes!
Introducing a self-declaration model of legal sex change in Scotland could introduce UK-wide self-declaration by the back door.
Murray Blackburn Mackenzie has written step-by-step guidance on how to answer the consultation and For Women Scotland has written template answers. You can either answer the short multiple-choice survey or give detailed answers.
For those outside Scotland the most helpful thing to do is to take the short survey and then write in the “further comments” field your concerns about the unanswered questions on cross-border impacts.
|The questions (with suggested answers)|
Do you agree with the overall purpose of the Bill? NO
Should applicants for a GRC require a medical diagnosis of gender dysphoria or supporting documentation? YES
Should the period of living in an acquired gender be reduced from 2 years to 3 months (with an additional 3-month reflection period)? NO
Do you agree with the introduction of a 3-month reflection period before a GRC is granted? DON’T KNOW
Do you agree with the removal of the Gender Recognition Panel from the Process, with applications instead being made to the Registrar General? NO
Should the minimum age for applicants be reduced from 18 to 16? NO
Do you anticipate any negative impacts from the provisions in the Bill? YES
Please provide any further comments you have about the provisions in the Bill
– What is meant by “ordinarily resident” in Scotland? How long would someone have to live in Scotland before applying?
– Will 16 and 17 year-olds from elsewhere in the UK be able to access the Scottish process?
– What about Scottish-born prisoners held in English prisons?
– Will a GRC obtained by self-declaration in Scotland have the same effect in other parts of the UK?
Questions about cross-border impacts
Who will be eligible to apply for a Scottish GRC?
The process will be open to those “ordinarily resident” in Scotland, or whose birth or adoption was registered in Scotland. The bill contains no definition of ordinary residence. Nor does it say whether or how an applicant would have to provide evidence of residence. Could a student from elsewhere in the UK coming to study in Scotland for a short period access the process? Could someone rent a property for a few weeks and use that as an “ordinary residence” for this purpose?
The Scottish Government wants to drop the age for those eligible to apply for a GRC from 18 to 16. The UK GRC system will remain open only to those aged 18 and over. Will 16 and 17 year-olds from elsewhere in the UK be able to access the Scottish process? What about Scottish-born prisoners held in English prisons?
What will be the legal effect elsewhere in the UK?
The Scottish Government maintains that possession of a GRC confers no additional legal rights. However, the UK Government takes the opposite view. This is seen most clearly in the Ministry of Justice’s trans prisoner policy, which states that male prisoners with GRCs should be treated as if they were biological females.
So, 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 from Scotland visiting other parts of the UK; prisoners in English and Welsh prisons; 16 and 17 year-olds?
The Scottish Government has no answers to these questions.
The Scottish Parliament committee’s deadline for submissions on the Bill is Monday 16th May.
You can submit evidence only via the online platform.
You could also write to your MP and ask them to raise these cross-border questions in Parliament.
Written with Lisa Mackenzie, Policy Analyst, MurrayBlackburnMackenzie