The Scottish government has presented, in the Scottish Parliament, a Bill to reform the UK-wide Gender Recognition Act (GRA) specifically for Scotland. This follows the UK government’s decision to make no changes to it beyond a reduction in the fee and making the process available online. A call for evidence regarding the provisions of the Scottish Bill closed on 16 May 2022. This is the Labour Women’s Declaration response to the specific points on which they invited comment.

Submission to Gender Recognition Reform (Scotland) Bill, call for evidence

From: Labour Women’s Declaration
We are a group of women who are members of the Labour Party, working to hold Labour to account on their manifesto commitments to women’s rights.
For more information, see our website: https://labourwomensdeclaration.org.uk/

The removal of the requirement for a medical diagnosis of gender dysphoria and supporting medical evidence.

This is the most problematic element of the Bill as it currently stands.

Removing the requirement for a medical diagnosis of gender dysphoria is a major change, expanding the population eligible for a GRC from a small and clearly-defined group of severely dysphoric people to a much larger and more diverse group. The Scottish Government estimates a ten-fold increase in applications, but it is worth noting that the proportion of trans-identifying younger people is growing significantly faster than in older age groups, so it may be an under-estimate. The risks associated with the increased diversity of the population who will be eligible for a GRC have not been properly assessed.

It is very concerning that, in the absence of a medical diagnosis, no other form of safeguarding is proposed to ensure the sincerity and appropriateness of an application for a gender recognition certificate. Essentially, removing this requirement means that no checks of any sort are made. This could be quite damaging for some people making an application – including young people, neurodiverse people, and others who may mistake their distress from other causes with a need to transition.

The NHS requires a diagnosis of gender dysphoria before providing cross-sex hormones or surgery. The provision of a GRC without any assessment of the candidate’s psychological state opens up the possibility that people may be enabled to hold a GRC but be unable to obtain medical or surgical support relating to their acquired identity.

The removal of the requirement for medical evidence also removes an important element of gatekeeping. Much has been said about the ‘demeaning’ aspect of the current process, but the fact is that there needs to be a robust system of checks before allowing individuals to obtain an altered birth certificate. For instance, individuals with suspect motives may want to obtain a GRC in order to work with the group they intend to sexually abuse, and gatekeeping needs to be retained to ensure this cannot happen, and to reassure the general public that it will not happen.

Provisions enabling applicants to make a statutory declaration that they have lived in the acquired gender for a minimum of three months (rather than the current period of two years) and that they intend to live permanently in their acquired gender.

It is highly problematic that there is no guidance given for what ‘living in the acquired gender’ might entail. Trivial aspects such as hairstyle or clothing are easily changed and surely are inadequate for a claim of living in the ‘acquired gender’. It is suggested that having utility bills etc in the new name might be regarded as evidence, but such changes are easily made with little check of any description.

Three months seems very short, when people are committing to an intended permanent change to their legal as well as social status and three months of attempting to present as the opposite sex may seem exciting – but could later pall, raising considerable problems for those who decide to detransition and may then be regarded as having made a false declaration.

Whether applications should be made to the Registrar General for Scotland instead of the Gender Recognition Panel, a UK Tribunal.

This entails a move from an assessment of an individual’s sincerity, and assurance that the person will not be harmed by the proposed change of legal status, to a mere tick box process ascertaining age and residency. This is an irresponsible move, failing in any safeguarding of the applicant or those with whom they are in contact. If the Gender Recognition Panel is not currently working well, and is felt by some to be demeaning, then we suggest its reform (e.g. by making it more transparent) rather than its abandonment.

Proposals that applications are to be determined by the Registrar General after a further period of reflection of at least three months.

What information will applicants be provided with to enable them to reflect on their decision and its possible implication? Will any guidance of any sort be available? Without any structure provided for this period of reflection, it would be possible for applicants merely to see this as a period of marking time, focussed on the end date, rather than a time of serious reflection about the enormous change they are deciding to make to their lives.

Whether the minimum age for applicants for obtaining a GRC should be reduced from 18 to 16.

This is a shockingly irresponsible suggestion. It is well known and understood that full brain maturity is not reached until the age of about 25 (as referenced at https://www.lawscot.org.uk/news-and-events/legal-news/brain-not-fully-developed-until-age-25-research-reveals/ ). Laws in many countries prevent those under 18 undertaking any action that results in permanent or long-lasting change, such as getting a tattoo in the UK. One’s sense of identity at age 16 is very rarely entirely unchanged by the age of 25 – in fact it is developmentally appropriate that at age 16 one is experimenting with possible ways to present oneself, attitudes etc. To encourage a 16 or 17 year old to make such a possibly temporary identity permanent is deeply irresponsible.

The interim report of the Cass Review commissioned by NHS England describes the unprecedented increase in numbers of children and adolescents, in particular adolescent girls, presenting with confusion and distress around their gender. As the interim review points out, the complex psycho-social reasons underlying this increase are not well understood, and likely to include a strong element of social contagion. It seems likely that desistance rates will be high for this group. The interim review also points out that social transition (of which a GRC could form part under these proposals) is an intervention with potentially major impacts on psychological functioning.

As the interim report raises, there are often complex issues surrounding a wish to transition, and adolescents need time, and psychological and social support, before committing to such a major, and permanent, change in their lives. We think it would be extraordinarily irresponsible of the Scottish Government to legislate in a way that will increase the pressures on adolescents to transition when, with time and maturity, every indication is that most young people’s distress will resolve naturally, and they will find ways to live without the major psychological and physical upheaval of transition. At the very least, we think the Scottish Government should wait until the full report of the Cass Review, and ensure that its findings are fully taken into account, or undertake a similar review in Scotland. This part of the legislation will have a significant potential impact on young people’s physical and mental health and well-being, and the Scottish Government owes it to them to ensure its legislation is fully informed by evidence.

There are also implications beyond those young people transitioning, including cross-border implications. For instance, young people of 16 and 17 who are still at school may have acquired a GRC, increasing the pressure on schools to allow young people who may not have undergone any physical change to use toilet and changing facilities, and dormitory accommodation, of their ‘acquired sex’ rather than their actual sex. This would potentially compromise the safety and privacy of girls. It could also be the case that young people may acquire a GRC in Scotland, and subsequently move to England or Wales, where school safeguarding protocols may be compromised.

If you have any comments on the provisions for interim GRCs.

The provision of an interim GRC has been a key means by which spouses unwilling to continue the civil partnership or marriage after the partner/spouse has changed their legal gender have been able to obtain an annulment of the contract. This is NOT, despite what has been frequently asserted, a ‘spousal veto’. On the contrary, it is a mechanism permitting the person wishing to change their legal gender to do so without the serious difficulties arising from a divorce, most particularly where religious or cultural contexts make divorce a very problematic, even impossible, matter. It is essential that the interim GRC and the consequent possibility of annulment of marriage or civil partnership continue in any future arrangements.

If you have any comments on the provisions for confirmatory GRCs for applicants who have overseas gender recognition.

‘Overseas’ in this context presumably includes those from England and Wales. While the conditions and process for such GRCs are well-known, the same is not true of those in every part of the world which has established such a legal status. It is of considerable importance that those whose GRC was established elsewhere have understood the legal position in Scotland, and it is clear that they have fulfilled similar requirements in their original country.

If you have any comments on the offences of knowingly making a false application or including false information.

One of the most serious areas of difficulty with a GRC is how those who decide to detransition can be enabled to do so. If their decision is interpreted as having made a false application in the original application, this is clearly problematic. Given the increased numbers of young people experiencing distress around their gender, there are likely to be more young people deciding that they have made a mistake – and criminalising them (or creating the impression that they will be criminalised) in their early or mid-20s for something they were certain about at 18 seems a very poor way to go. Should the Scottish Government reduce the age to 16, this will foreseeably further exacerbate the issue. We think the Scottish Government should be clear about the process by which, if an individual has genuinely made a mistake, they can secure a further change to their birth certificate, showing a reversion to their original sex.

Where applicants have knowingly made a false application, it is impossible to see how this will be proved. The only criterion for eligibility for a GRC proposed by the Scottish Government is an individual’s subjective sense of their gender identity as asserted by that individual. We think the legislation should make clear what additional criteria will be necessary and how these will be checked on application, thereby making it possible to also specify how it will be determined that these criteria have been breached.

Please share any other comments.

It seems essential that a full impact assessment is undertaken to fully examine and understand the potential impacts on many different groups in society, not only in Scotland but elsewhere, particularly in the remainder of the UK. We have referred to the need for spousal consent, interim GRCs and the possibility of annulment elsewhere, noting particularly the essential nature of such arrangements for those of particular religious beliefs and cultures.

There may be further implications for such groups, as well as for many others. Without a full assessment of unintended consequences for others, the proposed amendments to the Gender Recognition Act may prove to be a wolf in sheep’s clothing.

The matter of privacy needs to be more fully explored, especially in relation to the interaction of the GRA with the Equality Act. There are foreseeable conflicts of rights, and it is not clear how these would be resolved. For instance, the rights of a biologically male healthcare worker with a GRC to privacy regarding their trans history are in conflict with the rights of a woman to request intimate health care from a practitioner of the same actual sex (not self-declared gender).

The implication of cross-border matters appears not to have been considered. The definition of ‘ordinarily resident’ is unclear, so it may be possible for a form of ‘GRC tourism’ to take place, with those wishing to obtain a self-declared GRC moving to Scotland from England and Wales for the purpose, and returning when they have achieved this – assuming that a Scottish GRC would be recognised south of the border. These individuals will have not been subjected to any gate-keeping, by means of a diagnosis of gender dysphoria or otherwise, and will thus be a separate group from those holding the UK version of a GRC when it comes to assessment of eligibility in various contexts.

Will those young people from England and Wales attending a Scottish university be enabled to obtain a GRC during their student days? Again, there are major implications.

While only a small minority of those applying for a GRC are likely to do so for reasons other than to validate their wish to be seen as the opposite sex, there is no doubt that some men, in particular, are known to go to considerable lengths (training as priests or social workers, for instance) in order to gain access to those they wish to use for their sexual purposes. Without the most minimal gate-keeping for acquisition of a GRC, the proposed Scottish GRC process is open to this sort of abuse.

Given the lack of clarity regarding the ‘ordinarily resident’ requirement, would Scottish prisoners in prisons south of the border be eligible to apply for a Scottish GRC? For that matter, would anyone who has lived in Scotland for a length of time, despite now residing elsewhere, be eligible to apply?

There are major problems in prison populations already, in Scotland, the rest of the UK and in other countries. Possession of a GRC enables a male-born person, even one convicted of a sexual offence, declaring a female ‘gender’, being housed in women’s prisons. Even before any law change in Scotland, self-declaration (with no GRC) is too often regarded as adequate reason to send a male offender to a women’s prison, and inevitable difficulties have
arisen. Large numbers of people being able to obtain a self-declared GRC will make it nigh-on impossible to row back from what are realised to be unintended consequence, despite it being clear that the damage to the vulnerable women in women’s prisons is considerable.

It seems really important that there is no rush to legislation until the questions and issues we, and others, have raised have been fully considered and answered.