Gender Recognition in Scotland

The Scottish Government proposes that a person should get gender recognition, if they make a formal declaration before a Notary Public that they intend to live in their acquired gender until death. Making a false statutory declaration is a criminal offence, and their research on other countries allowing self-declaration has not found evidence of false or frivolous statements. There is support from women’s rights organisations including Scottish Women’s Aid and Rape Crisis Scotland, whose joint statement says, We do not regard trans equality and women’s equality to be in competition or contradiction with each other. We support the Equal Recognition campaign and welcome the reform of the Gender Recognition Act.

Rape Crisis and Women’s Aid in Scotland provide trans inclusive services on the basis of self identification. We will continue to work collaboratively with Scottish Trans Alliance and other equality organisations with the aim of ensuring that new processes are appropriately designed and without unintended consequences.

Limiting the number of times one can change sex might restrict frivolous applications. Malta requires second and subsequent applications to be considered by a court. However Sam Kane has transitioned three times, male to female to male to female, and I feel each time she did it feeling distress and oppression. She reverted because of sexism and transphobia. These things are not her fault and she should not be penalised for them. Colombia only permits two changes, which must be at least ten years apart. That might make me fear an honest declaration, since I cannot correct it if I am wrong. When I transitioned, I thought it possible that I might be trying to live male five years later. It is an additional difficulty, just one more thing requiring a leap of faith. I consider my real transition to be the day I transitioned at work, or “went full time”, which required enough clarity, determination and trust, as I would have made a fool of myself to revert.

Even the suggestion that men might do this frivolously, or maliciously to get access to women’s space, is repulsive. Even three in a year might be a leap, a bad experience causing reversion, then a second leap of faith which is even more courageous. I do not want someone showing that courage and determination to be investigated in case they were frivolous. Instead, deal with actual wrongs. Women’s space is not a good place for sex crime, as the criminal is outnumbered. Women’s support groups have experience with difficult behaviour and ways of dealing with it.

The Scottish Government proposes that 16 year olds should be able to affirm their gender change, as Scots law generally gives rights as adults to people over 16, and protections as young people until 18. They are consulting on various options for younger children, such as allowing parents to affirm for them. The parent would be trusted to do this in the best interests of the child, and consider the child’s wishes. Alternatively, a child who could show they had sufficient maturity to make the decision could affirm.

Ireland and Denmark do not require the consent of a spouse before a married trans person can declare their gender. If the gender change breaks the relationship, the trans person should not have to undergo the expense of divorce before getting their gender recognised. If the relationship remains, the trans person will not make the declaration without their partner’s support. In either case they should not require the partner’s consent. Consent can be used to put improper pressure on a trans person. The other may feel betrayed, and feel that the trans person has broken the relationship, but that does not entitle them to take revenge by refusing consent.

Now, if one partner seeks gender recognition the other can use that as grounds for divorce. This should not be a separate ground for divorce. The usual ground is “unreasonable behaviour”, and a spouse should be able to argue that gender change is unreasonable behaviour. This is such a slight change; it means that gender recognition broke the marriage in the particular circumstances of this couple, rather than normally or generally.

They are also talking of increasing recognition for non-binary people, though this will require action by the UK government and additional rights in Equalities legislation.

They don’t address the question of what it means to “live in your acquired gender”. For me, does it mean always wearing wigs and at least attempting to talk in a feminine register? Does it mean anything else about clothing preferences, or particular behaviours? I think it means what the person believes it to mean. Women can wear what they like and do what they like. I feel most people who change gender will have a particular view about what it means, and attempt to resemble the assigned gender, but that is subjective too.

Consultation document pdf is here. It describes ways to respond to the consultation.

6 thoughts on “Gender Recognition in Scotland

  1. One who has transitioned should be able to cross dress, or dress any way she or he likes. My hope is that, some day, governments will drop the gender from official ID altogether. What purpose does it have, except for statistics, and it would still be close enough to 50/50 whether changes are recognized or not. I suppose that, in the event of a crime, it may be useful in describing the perpetrator or deciding which jail to send her or him when caught. “Female (or male) in appearance” would easily satisfy the first, and a simple statement from the accused should suffice for the latter.

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    • I would rather the law did not care what gender anyone was, but considering that it does I feel that we should be able to decide which. And I want trans people to have the freedoms of cis people, to present and dress as we please. Otherwise, everyone has the right to judge us, whether we are trans enough.

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  2. I agree with you Clare, gender expression (or presentation) has nothing at all to do with gender identity and people should have the right to have their gender identity accepted as much as everybody else – and in the same way that each individual has a right to express their gender in a way that suits them.

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    • Welcome, Carol, and thank you for commenting.

      I feel we have to take account of the sensibilities of other people- just as everyone has to. We may need to be assertive but should try not to be boorish. I love that quote from Women’s Aid in Scotland: there is no need for fear. TERFs trade on fear- we are men, we will be vile, we may be sex offenders, they say. Women’s Aid should know. With allies like that, why should we worry about a few TERFs?

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      • Yes, again I agree – my proposals for the English Government’s consultation (when they actually get round to launching it) will be:
        1. A person gets a deed poll or stat dec done. This starts the clock ticking
        2. The person can then get other documentation changed (eg, driver’s licence, Nat Ins and Tax records, bank account details, credit cards, utility accounts etc.
        3. Three to six months down the line, the person takes all the documentary evidence to a solicitor or other court official for verification and swears on oath that the change is going to be permanent.
        4. The person is issued with a certified document which the person then sends of to Somerset House (or other specified location) and receives back the new birth certificate.
        This gets round all the objections which are being thrown up like chaff by the anti-trans cabal, doesn’t medicalise the process, keeps the cost to a minimum.
        I would also like to see the age limit reduced to 10 (so that when a child changes from primary to secondary education, the new birth certificate is in place) – but only with both parents permission. If only one parent is agreeable and the child is Gillick Competent/Fraser Guidelines aware then it should be granted at 12.

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        • “When the accoster is not leaping on his mother (on his mother)
          He rather enjoys lying in the sun (in the sun)
          Ah, take one consideration with another”…

          These hypothetical rapists and provocateurs will not want to be harassing women all the time, and might want a passport saying “M”.

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