Gender Recognition in Scotland: the consultation responses

The consultation in Scotland has produced powerful arguments for gender recognition reform. Trans people should have our true gender recognised with the minimum of bureaucracy. There were over fifteen thousand responses, from Scotland and around the world.

The terfs had got their publicity machine going in England by the close of the consultation in March. In England, nearly half of respondents said trans people should not be allowed to declare our gender. But of people in Scotland, who are most affected, 65% agreed that the law should recognise the gender we officially declare. Why? Because no-one makes such a declaration without thought and commitment, and because the existing procedure is expensive and demeaning, deterring people from applying. We should not need to provide medical reports, because we are not ill, and we have to wait too long to see the particular specialists. A rape crisis centre reported that they work by self-declaration already, and never demand to see anyone’s birth certificate.

Should we have to make a “statutory declaration”, a formal oath or affirmation before a Justice of the Peace or solicitor? A bare majority said Yes, and I agree. It is a serious matter. However, a meeting with a registrar is an alternative. Should we say we will live in the acquired gender “until death”? Some fear reference after death to the previous name and gender, others say they do not know what their intentions will be. Wording like “Currently intend to live in the acquired gender permanently” would solve these problems. Any statutory declaration sets a bar for gender recognition, which might put people off. It may be contrary to the spirit of self-declaration.

There should not be a reflection period after the declaration. People have thought long and hard before we change our gender, and social transition has far more consequences than the declaration.

Should there be a limit on the number of times a person can get legal gender recognition? Some dullard, to make a point, might do a stat dec every week, and if he wants to it harms no-one, and does not make a wider point about the system as a whole. There is no evidence of frivolous behaviour or fraudulent abuse elsewhere, and a limit might show undue concern about such abuse. It might deter people from self-declaring. But for trans people, our understanding of gender can evolve over time, and we might revert because of external pressure- my friend reverted as she could not see her grandchildren otherwise.

Would anyone get a gender recognition certificate in order to assault women in women’s spaces? Layla Moran MP, responding to a hysterical, evidence-free rant from one of our stupidest male MPs, explained why not in Westminster Hall recently: Let us assume that someone wants to go into a women-only space for nefarious purposes. That [gender recognition] would be quite a stupid thing to do because, apart from anything else, if an offence was committed it would show evidence of premeditation, which would increase the person’s sentence. Also, had the certificate been gained for the sole purpose of entering such a space to commit a crime, that would be a separate crime under ​the Fraud Act 2006. If someone was intent on harming women, that would be one of the stupider ways of doing it. People can be trusted to state our own gender identity. It affects no-one else.

Should the declaration only be open to people living in Scotland or whose birth was registered there? I think yes, though a majority disagreed. Other countries might not recognise a Scottish gender declaration of a person without a link to Scotland, but it would be something people could do, symbolically, if they could not get gender recognition in their own countries. It would have effect while in Scotland. It demonstrates Scottish values of liberal inclusiveness. Asylum seekers might not be considered legally resident, and should be able to change their gender. Some people might be planning to move to Scotland.

Now, only people 18 or over can change their gender. Should 16 year olds be able to? Increasingly, 16 year olds can exercise other rights in Scotland. They can get married, and vote in Scottish elections. Most people agreed they should, especially Scots. However existing Scots law presumes capacity to make choices and exercise rights from the age of 12, and younger children can demonstrate their capacity to do so. The UN convention on the rights of the child requires that children are not discriminated against on the grounds of age, gender identity or sexuality. Children can be aware from an early age that they are trans. Gender recognition could help them move into adulthood, and thrive in education or employment. They sometimes avoid applying for opportunities because it would mean showing a wrong gender birth certificate. It affects their self-esteem if their documents are questioned. A parental application or applications by capable children are other possibilities.

Should we be able to get gender recognition irrespective of a spouse’s consent? 70% said yes. Even in marriage we should have a right to personal autonomy and self-identity. Spouses refusing consent could be abusive or manipulative. Trans people are at a high risk of domestic abuse. Abusers should not be given power or control, or the ability to ridicule. You do not need spousal consent for hormone treatment or surgery. Should a civil partnership be converted to a marriage or annulled? I feel opposite-gender couples should be able to get civil partnerships, but that’s really not a trans issue: there should be an option of leaving it be. 73% agreed.

Should gender recognition be a ground of divorce? “Irretrievable breakdown of marriage” is the ground of divorce, including where a spouse has behaved in such a way that it is unreasonable to expect the other to carry on living with them. That does not mean the behaviour was wrong, just the spouse reasonably felt it broke the marriage. So there is no need for a separate ground. That’s the Scottish Government’s view. To have legal gender recognition as a standalone ground for divorce is stigmatisation. It could contravene a right to privacy.

Most people didn’t know whether there should be changes to our right to privacy, and only 15% said there should. But for those who said there should be no change, the most frequent comment was that the right to privacy should be paramount. I feel we need additional protections, but the consultation is inconclusive. We should be protected whether we have a gender recognition certificate or not.

Most people agreed that if someone’s gender is recognised by another legal system, Scotland should automatically recognise it. Of course. No-one should need to reapply. It is unwelcoming and distressing to require a second gender recognition process. There is no basis for treating a person Canadian law, say, treats as a woman, as anything else unless the person desires it. We should not have to prove our gender.

Should Scotland take action to recognise non-binary people? Yes, and 66% of Scots respondents agreed. Being non-binary is just as valid as other genders or being trans. Non-binary people are humiliated by misgendering. They deserve respect and the same rights as everyone else. Non-binary recognition subverts overly rigid gender stereotypes. 75% opted for full recognition with the existing gender recognition system.

The Scots parliament cannot amend the Equality Act, but amendment is vital. Rather than referring to “gender reassignment” it should protect people on the ground of “gender expression and trans identity”, or of gender identity or gender expression. That would protect those terfs who find gender stereotypes particularly repugnant or oppressive. There could still be protection on sex as a separate ground.

The English consultation received over a hundred thousand responses, and the Government hopes to have a response in Spring next year, but the minister says “There will be no loss of trans people’s rights”. That’s a relief. The pdf summary of the responses to the Scottish consultation is here.

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