Is it time to change the law on gender recognition?

There is growing political consensus in Scotland that the process to legally change gender should be based on self-declaration rather than psychiatric diagnosis, and it should be available from the age of 16 rather than 18. Additionally, there should be legal recognition for people who identify as non-binary – neither male nor female. Each of the five main parties referred to a review of gender recognition law in their manifestos (Equality Network 2016).

 Trans Umbrella

‘Transgender people’ or ‘trans people’ are terms that cover the range of ways people can find the personal experience of their gender differs from the assumptions of the society in which they live. It includes: trans women who are male-to-female transsexual women; trans men who are female-to-male transsexual men; non-binary people who are not comfortable thinking of themselves as either male or female; cross-dressing people who dress as the opposite gender, which is about gender expression rather than gender identity (Scottish Transgender Alliance 2016).

Equal Recognition Campaign

The Scottish Transgender Alliance (STA) has been calling for changes to the Gender Recognition Act 2004 in its Equal Recognition Campaign. The STA explained their campaign to the Scottish Parliament’s Equal Opportunities Committee in an evidence session in February 2016 (Scottish Parliament 2016). A summary of evidence on this evidence session provides further background (Georghiou 2016). The changes have been supported by the House of Commons’ Women and Equalities Committee (UK Parliament 2016), and by the leaders of the five main political parties in Scotland (Stonewall 2016).  The campaign is calling for the following reforms to the Gender Recognition Act 2004:

  • Removing the psychiatric diagnosis requirement from legal gender recognition, to be replaced with a self-declaration process.
  • Reducing the age at which people can get legal recognition of their acquired gender, from 18 to 16, and for those under 16 with consent from their parent or legal guardian.
  • Legal recognition for people who do not identify as men or women.

What is the current situation?

Under the Gender Recognition Act 2004 (GRA), transgender people can apply for legal recognition in their acquired gender. The Gender Recognition Panel, made up of legal and medical members, makes decisions on issuing gender recognition certifications. To issue a certificate, the Panel must be satisfied that the person applying:

  • Has, or has had, gender dysphoria; and
  • Has lived in the acquired gender for two years before the date of the application.

Gender dysphoria is described in the General Guide for all Users: Gender Recognition Act 2004 as:

“…a recognised medical condition variously also described as gender identity disorder and transsexualism. It is an overwhelming desire to live in the opposite gender to that which a person has been registered at birth.” (HM Courts & Tribunals Service 2014)

Once someone has been successful in changing their gender they will be issued with a new birth certificate.

Psychiatric diagnosis or self-declaration?

The current process to change legal gender requires people to provide a range of documents and detailed reports from their GP and a psychiatrist. The process has been described as “traumatic, difficult and frustrating” to those wanting to change their legal gender by the STA.

The STA is seeking to replace this process with a self-declaration process, similar to the way in which people can currently change their gender on other documents. Self-declaration for gender recognition is used in Ireland, the Netherlands, Denmark, Malta, Sweden, Norway and Belgium.

Lowering the age for legal gender recognition from 18 to 16

People must be aged 18 or over to legally change their gender. Young people are able to change their gender on most documents, but not their birth certificate. The STA have said that people know their gender from a young age and to be able to legally change their gender at 16 allows a young person to feel valued, understood and accepted. The Equal Opportunities Committee heard evidence from the STA that in Scotland there has been an increase in the number of children being referred to the Sandyford Child and Adolescent gender identity service, rising from 67 in 2013 to over 180 in 2014 (Scottish Parliament 2016).The House of Commons’ Women and Equalities Committee said that there is evidence to show that earlier intervention can improve mental health and physical well-being for young transgender people (UK Parliament 2016).

Legal recognition for people who do not identify as men or women

Non-binary people are those who do not consider themselves either men or women; they do not identify with the gender they were assigned at birth and do not wish to switch to what might be considered the opposite gender. There is no legal recognition for non-binary people. The STA referred to good practice; driving licences and bank statements allow people to use gender neutral titles, such as ‘Mx’. Malta and Argentina now allow people to be recognised as non-binary on their passports (Scottish Parliament 2016).

The way forward?

The House of Commons’ Women and Equalities Committee called for a change to the GRA within the current parliament (UK Parliament 2016). The STA suggested that the Scottish Parliament could reform gender recognition in Scotland because it is a devolved matter, but that this could be done in tandem with England and Wales. This was undertaken with equal marriage legislation, ensuring similar rights across Great Britain (Scottish Parliament 2016).

Nicki Georghiou

Sources:

Equality Network (2016) Compare the manifestos – changing the law. Available at: http://www.equality-network.org/changing-the-law-holyrood-2016/ [Accessed 6 May 2016]

Georghiou, N (2016) Equal Opportunities Committee Gender Recognition – Summary of Evidence, Equal Opportunities Committee. Available at – http://www.scottish.parliament.uk/S4_EqualOpportunitiesCommittee/Inquiries/Transgender_Summary.pdf [Accessed 27 April 2016]

Scottish Parliament (2016), Official Report, 4 February 2016, Equal Opportunities Committee. Available at – http://www.scottish.parliament.uk/parliamentarybusiness/report.aspx?r=10360&mode=pdf [Accessed 27 April 2016]

Scottish Transgender Alliance (2016) Transgender Equality & Rights in Scotland, Trans umbrella. Available at – http://www.scottishtrans.org/trans-rights/an-intro-to-trans-terms/transgender-umbrella/

Stonewall (2016) Scottish Parliament LGBTI Hustings. Available at – http://www.stonewall.org.uk/our-work/blog/scottish-parliament-lgbti-hustings [Accessed 27 April 2016]

UK Parliament (2016) Women and Equalities Committee calls for equality for trans people, News, Women and Equalities Committee. Available at – http://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2015/transgender-inquiry-report-published-15-16/ [Accessed 27 April 2016]

HM Courts & Tribunals Service (2014) The General Guide for all Users Gender Recognition Act 2004. Available at – http://uktrans.info/legislation/68-legal-gender-recognition/133-a-general-guide-for-all-users-gender-recognition-act-2004 [Accessed 27 April 2016]