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.

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.

Non-binary recognition

Non-binary recognition? “Soon”, promises the UK government. As it has taken a year from the announcement to start consulting on trans gender recognition, that might be a long time. We want people who identify [as non-binary] to be able to live discrimination-free lives in accordance with who they believe their true selves to be, says the consultation, but not when.

Non-binary recognition is a complex issue, with many potential implications for the law and public-service provision, the consultation says. They are quite simple. Non-binary people are not protected from discrimination, and they should be. It would be simple enough for most toilets open to the public to include non-binary facilities, either by making all the toilets all-gender, or by making a disabled people’s toilet all-gender.

Maternity leave and paternity leave need to be equalised. People could be recorded on birth certificates as parents rather than “mother” or “father”.

But we might not know what sex people were!!!

If you can’t tell, it’s none of your business. Stop trying to pigeonhole people. Sex is not a reliable indicator of other qualities or characteristics. What sex someone is is only important if you want to have sex together.

Many forms ask your sex, and that is not necessary unless services should be different or sex-segregated. Admin and IT systems usually assume only two genders, but these could be changed within a reasonable time- certainly the next time the system is overhauled. Marriage and civil partnership should be open to all kinds of couples, including non-binary parties.

Purely on the issue of gender recognition, it is difficult to get evidence of living as non-binary, because documents don’t show what that means. Non-binary people don’t always seek out a gender dysphoria diagnosis. So, a gender recognition system which recognised non-binary might not insist on those things. But, it should not insist on those things anyway.

The current requirement for applicants to make a statutory declaration that they intend to live in their acquired gender until death: we would like to hear respondents’ views on whether they think non-binary people should be asked to commit to living permanently in a particular gender. What does it mean to live in a particular gender? You can normally spot someone who is “living as a woman”, but there is no one way of expressing as non-binary. Anyone may dress androgynously if they wish. So you are living as non-binary if you tell people you are non-binary. How people express that will develop over time.

The question now asked is,

20. Currently UK law does not recognise any gender other than male and female. Do you think that there need to be changes to the Gender Recognition Act to accommodate individuals who identify as non-binary? If you would like to, please expand more upon your answer.

Yes; but they should not be allowed to delay reform of the GRA for binary trans people.

The Scottish consultation gave alternatives for non-binary recognition:

  1. Changes to administrative forms.
  2. the Book of Non-Binary Identity, a register of those who wished to be recorded as non-binary.
  3. limited identity document and record changes, such as passports and driving licences.
  4. self-ID. The consultation listed other legal issues this would raise.
  5. an incremental approach, adopting options 1,2 and 3 and moving towards full recognition
  6. seeking amendment of the Equality Act.

Gender recognition consultation: questions and answers

The consultation on Gender recognition closed on Monday 22 October at noon, extended from Friday 19 October at 11pm because the servers could not cope with demand. This is what I wrote, and I would love to hear what you think. How can an individual give evidence strengthening the case for gender recognition?

The first questions are about the process. What should you have to do to prove you are serious, or to prove you are trans, before you can get a GRC? They go step-by-step through the process.

1. If you are a trans person, have you previously applied, or are you currently applying, for a Gender Recognition Certificate? If yes, please tell us about your experience of the process. If you have applied, were you successful in obtaining a Gender Recognition Certificate?

I got my GRC in January 2006, more than three years after transitioning. I found it extremely expensive and intrusive. I had to pay for further medical reports. Proof of living as a woman was easy for me, as my employer had been supportive and I kept my job from before, so I had monthly wage slips. If I had not had a job, or my job had been more precarious, I would not have got the evidence so easily. Someone might change their name and presentation but have difficulty getting their bank or the passport office to recognise that: the passport office demanded a letter from my GP.

I had no difficulty understanding the requirements, but I had a degree and a professional job. I had a friend who was a solicitor who could hear me affirm the statutory declaration.

I received a GRC without further correspondence, but I had to wait for a response. I knew I was trans. I should not have to have someone judging that.

2. If you are a trans person, please tell us what having Gender Recognition Certificate means, or would mean, to you.

I have not shown it to anyone. I have not felt the need to tell anyone that I have one, except when discussing gender recognition and what it means. It has not affected my right to marry or get a pension earlier. But it means that my womanhood is affirmed by the law, and when my womanhood- my right to be me, my right to express myself as I truly am- is challenged thoughtlessly in the press, in the street and throughout the culture, that means a lot to me. The law is on my side.

3. Do you think there should be a requirement in the future for a diagnosis of gender dysphoria?

No. There are different terms, including “Gender identity disorder”, and other terms may be coined in the future. The draft ICD says that gender incongruence is not a mental illness, and says The individual experiences a strong desire to be treated (to live and be accepted) as a person of the experienced gender. That is, the diagnostician is judging on the basis of what the patient wants. But I know what I want. I should not need a psychiatrist to validate that.

Gender dysphoria should not be medicalised. Some people will want to see a doctor, to discuss how they feel and what they want to do, and to have medical treatment. Others don’t, and should not need to.

4. Do you also think there should be a requirement for a report detailing treatment received?

Ew! No! You’re asking what’s between my legs. Gross! How dare you!

That is a dehumanising question. People would be sitting in judgment on me, as if transition was an inherently suspicious activity and I had to prove I was genuine. But trans is part of ordinary human diversity. Some people are trans- “Get over it!” as Stonewall says. I should be believed I am trans unless there is evidence otherwise.

The New Zealand parliament is considering its Births, Deaths, Marriages and Relationships Registration Bill. The NZ Human Rights Commission provided useful evidence to the select committee, recommending that no diagnosis or evidence of medical treatment should be necessary.

5. Under the current gender recognition system, an applicant has to provide evidence to show that they have lived in their acquired gender for at least two years.
(A) Do you agree that an applicant should have to provide evidence that they have lived in their acquired gender for a period of time before applying?

No. Transition is not something anyone undertakes lightly. We have wanted to for a long time before we do it. We might spend a long time planning and preparing: I spent eighteen months after deciding I would do it. It is a risk and a challenge. We learn who our friends are.

Now, some people who have transitioned are validated by the law, and some are not. We are all committed to transition. The time I needed that validation was shortly after transition. I was being insulted in the street, and losing friends. The moment I changed my expression at work, or changing my name, was proof of my commitment.

(B) If you answered yes to (A), do you think the current evidential options are appropriate, or could they be amended?
(C) If you answered yes to (A), what length of time should an applicant have to provide evidence for?
(D) If you answered no to (A), should there be a period of reflection between making the application and being awarded a Gender Recognition Certificate?

No. For all the uses a GRC could have, either as evidence or as psychological reassurance, its greatest need is just after transition.

6. Currently applicants for a gender recognition certificate must make a statutory declaration as part of the process.
(A) Do you think this requirement should be retained, regardless of what other changes are made to the gender recognition system?

Yes. Anyone can make a statutory declaration in front of a magistrate. If the required terms are freely available on line, so that a draft could be downloaded and changed to fit the applicant, it should be simple enough. The statutory declaration gives solemnity to the occasion. It protects by criminal sanctions against frivolous or fraudulent applications.

(B) If you answered yes to (A), do you think that the statutory declaration should state that the applicant intends to ‘live permanently in the acquired gender until death’?

No. I am clearly trans. I have the diagnosis, and I have been transitioned for sixteen years. When I transitioned, I had heard of people reverting, and thought I might find myself reverting- but even if in five years’ time I was trying to live male again, I knew that I had to transition, to try it, before I could be reconciled to that. Seeking a GRC, with a statutory declaration, is sufficient proof of serious intent.

(C) If you answered no to (A), do you think there should be any other type of safeguard to show seriousness of intent?

I can’t think what that would be. If you have a suggestion, please comment below. Possibly, just wanting to apply is sufficient proof of seriousness of intent. What cis person wants to declare themselves trans?

8. Currently, applicants must pay £140 to apply for a Gender Recognition Certificate.
(A) Do you think the fee should be removed from the process of applying for legal gender recognition?
(B) If you answered no to (A), do you think the fee should be reduced?

Possibly, the Stat dec should just go to the registry where your birth certificate is, then they could issue the GRC and the revised birth certificate. Why should there be a central body dealing with gender recognition, or a register of GRCs? This should not be complex. People are trans. So there should be no fee beyond that for the additional birth certificate.

The Government is keen to understand more about the financial cost of achieving legal gender recognition, beyond the £140 application fee.
(C) What other financial costs do trans individuals face when applying for a gender recognition certificate and what is the impact of these costs?

Costs of getting medical evidence might double the fee. Solicitors may charge for drafting and swearing the Stat dec. Clearly, something is putting people off. I have been unemployed, and when unemployed would not have been able to afford a GRC.

 ♥♥♥

The consultation asks about the effects of gender recognition on other people. Of course there aren’t any, not that should prevent gender recognition; but the consultation gives a space for gender critical feminists to claim the end of women’s rights or autonomy. I hope the government does not use their ravings as an excuse to ignore our international human rights.

7. The Government is keen to understand more about the spousal consent provisions for married persons in the Gender Recognition Act. Do you agree with the current provisions?

No. Now, a married person can apply for a GRC with a statutory declaration from the spouse consenting to recognition. If the spouse does not consent, the person applies for an “interim” GRC which either party can use to apply for the marriage to be annulled. After annulment, the person can get a full GRC. There have been 196 interim GRCs, and 130 of them have been converted to full GRCs.

Marriage should not give rights of control over the spouse. Anyone should be able to get their gender recognised. Either party might want a divorce after the gender was recognised, and existing law would allow either to claim it.

9. Do you think the privacy and disclosure of information provisions in section 22 of the Gender Recognition Act are adequate?

It’s a criminal offence to out someone in particular circumstances, but no-one has ever been prosecuted for it. It should be a crime to out someone with the intention of causing them harm, and a crime recklessly to out someone where harm has resulted. More here.

10. If you are someone who either has, or would want to undergo legal gender transition, and you have one or more of the protected characteristics [grounds for protection against discrimination], which protected characteristics apply to you? You may tick more than one box. Please give us more information about how your protected characteristic has affected your views on the GRC application process.

Well. White people are protected against race discrimination, and men against most sex discrimination. Cis people are not protected: anyone can lawfully discriminate in favour of trans people. Anyone is protected against discrimination on grounds of age. Sexual orientation means orientation towards the same sex, the opposite sex, or either sex: so if you change gender, you change orientation too unless you are Bi. But perception matters too: if I am perceived as gay, and discriminated against because of that, even though I am not perceived as trans, I would have a claim even if I am straight. Proof of motivation can be difficult.

If I were to claim equal pay for work of equal value, the person I compared myself to would have to be male. Men are likely to be paid more, but these claims are difficult.

11. Is there anything you want to tell us about how the current process of applying for a GRC affects those who have a protected characteristic?

There is nothing in the consultation about young people. At the moment, you cannot apply for a GRC before the age of 18, and might not have the evidence then. The Scottish consultation proposed allowing 16 year olds to apply, and various ways parents could affirm for younger children. Mermaids, the charity for trans youth, has a statement on this.

This is also the space for the gender critical feminists to do their stuff. All accusations that gender recognition means the death of feminism, the end of women’s rights and an irruption of men in women’s spaces, perving and assaulting, go here.

Yes, I am mocking. No, I am not taking those accusations seriously, because they are completely groundless and increasing gender recognition elsewhere has furnished no evidence to support them.

Then there are a series of questions on how gender recognition might affect people with rights under the Equality Act exemptions. Initially, I thought them stupid questions. They depend on the interpretation of the Equality Act, so are issues of law rather than fact. After gender recognition, we remain “transsexual persons” according to that Act. They give an opportunity for anyone to claim they are affected, and explain why. I don’t think there is any reason anyone would be affected.

12. Do you think that the participation of trans people in sport, as governed by the Equality Act 2010, will be affected by changing the Gender Recognition Act?

No. Women remain subject to gender tests. Sports bodies can make rules about safety and fairness, and clearly could ban a trans woman who had not had hormone therapy on those grounds.

13. (A) Do you think that the operation of the single-sex and separate-sex service exceptions in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?

No. They can still exclude trans people in rare, particular cases.

(B) If you provide a single or separate sex service, do you feel confident in interpreting the Equality Act 2010 with regard to these exemptions?

I can see that some people might not feel confident. Excluding someone leaves you open to a claim of discrimination, and even if you are likely to win you still face worry and expense. But if there is a good reason (a proportionate means of achieving a legitimate aim) they may exclude.

(C) If you are a trans person who has experienced domestic abuse or sexual assault, were you able to access support?

I have not, thank God, but I understand some services include trans folk. Why should they not?

14. Do you think that the operation of the occupational requirement exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?

No. Single sex services will still be able to employ cis people of that sex. The consultation document explains that the Equality Act exemptions will still apply. But, again, there is room for the “Help help the sky is falling” interjections. I hope they only want junior civil servants to get a good laugh. I fear such meretricious objections will be taken seriously.

Similarly, single sex communal accommodation (q15) and armed forces combat effectiveness (q16) will not be affected. The government don’t think insurance (q18) will be affected, and nor do I. Q19 refers to other public services, including hospitals and prisons. There are provisions for dangerous cis women to be placed in the male estate, so these will continue to apply to dangerous trans women. Prisons are underfunded death traps, unfit for human habitation, and a disgrace, but that is not going to be affected by gender recognition.

17. Do you think that the operation of the marriage exception as it relates to trans people in the Equality Act 2010 will be affected by changing the Gender Recognition Act?

No. Religious people are officially allowed to be bigotted against us, because of their “beliefs”. Then again, it should be. A baptised member of, say, the Assemblies of God or the Jehovah’s Witnesses should be able to force them to recognise her/his gender. But there is no proposal to change this law.

Q20 asks about non-binary gender, and that’s tomorrow’s post.

Gender Recognition reform

Should we be able to change our gender without medical evidence? Of course. I know who I am, and you do too. Will we be able to? I hope so. The government consultation on reform of the Gender Recognition Act has now been published, along with “Easy-read” documents explaining it aimed at people with learning difficulties or low literacy.

The government estimates there are between 200,000 and 500,000 trans people in the UK. 4910 of us have gender recognition certificates, recognising our true gender. Not all that half million have transitioned: my crude estimate puts that at about 40,000. By transition, I mean, changing name and gender expression permanently, as I have done. I have a woman’s name, clothes, hairstyle. My mannerisms are my own, but before transition I attempted to make them manly and now no longer do so. My voice is variable, as I did not work hard enough at the speech therapy exercises.

That means the number who have transitioned is far less than the number of trans people. Some might be in complete denial and internalised transphobia, some might express themselves in their true gender in private, or in closed, secretive clubs, some might think they had a sexual perversion rather than gender incongruence, some might express their true gender in public, but not all the time. Some might express their true gender in words and mannerisms, but not in symbols like clothes. Any amount of true gender expression might go with any level of self-acceptance, from total denial and shame to full acceptance.

At the moment, there is gender recognition for people who transition, seeing a specialist psychiatrist, getting a diagnosis, changing their name and living in their true gender, though not necessarily passing. The consultation asks if the process should still require

medical evidence,
evidence of living in the true gender for a period of time,
a statutory declaration leaving a frivolous or fraudulent application open to criminal prosecution, and/or
the intention to “live permanently in the acquired gender until death”.
“Should there be any other safeguard to show seriousness of intent?”

The questions are not written to lead to either answer. You are invited to say yes or no, and why. There is no clear indication of the government’s intent.

The purpose of a consultation, a cynical civil servant (that may be a tautology) told me, is to get evidence to support doing what you wanted to do. I fear the Tory government. I fear that they want evidence to justify them being restrictive. I fear Brexit means not bothering about human rights any more. But the question is, what harm would it do? If someone wants their true gender recognised, why shouldn’t they have it?

I hope reform will mean more people transitioning, and being more visible. We will still be seeing psychiatrists because we want to make sense of our feelings, consider other mental health issues such as depression and anxiety, and discuss what to do. Then we will change name and gender presentation, intending for that change to be permanent, and then get a GRC. Because transition lets us be fully ourselves, express who we really are, stop living a lie, stop pretending. Gender is restrictive and Procrustean, and this is our way of escaping it.

Some people worry that someone might get a GRC without transitioning, still presenting in the birth gender sometimes or even all the time. Would anyone actually do that? Would cis men get a GRC as a woman to enter women’s spaces? Would trans people get a GRC without an intention to permanently transition? If a woman can go out with short hair, no makeup, t-shirt and jeans, what does “living in the acquired gender” mean, anyway? Would a man pretend to have a GRC, in order to get into women’s toilets?

I don’t think anyone would. Would a cis man want to declare he is a woman, either in front of a magistrate or at a toilet door? There are contemptible game-players about, who might, but they have other ways of being arseholes. It’s not beyond the bounds of possibility, and not so likely to be a reason to prevent trans people getting gender recognition.

What I want from this reform is for being trans to be less of a big deal. Making it easier makes it more normal. The result is to blur the boundaries between genders so that people can express themselves more freely. It might reduce the pressure to have surgery and hormones: if a trans boy can be accepted without question or continual “mistakes” about his pronouns as a boy, he might not need to wear his binder so tight. Telling him he’s a girl, really, puts more pressure on him to prove himself.

There is enough of a difference between male and female presentation for trans to have meaning. Trans people often have visible signs of our birth gender which drive us to signal our true gender more clearly.

The consultation is a chance for trans people to become more visible and more accepted. This will reduce the hurt and fear around trans people. We will be part of ordinary human diversity. We will be safer as a result. People will blossom and flourish as our shame decreases. We will express ourselves as we truly are.

My estimate of the number transitioned I got as follows. 6900 trans people (excluding non-binary) responded to the government’s National LGBT Survey. 9.4% of them had a GRC (11.6% of 5600, excluding those unaware of the GRC procedure). 4910 people have a GRC. So, if the proportion of trans people in the UK who have a GRC is the same as the proportion of respondents who have a GRC, 52,153 are trans; but 16.6% had not started transitioning, so 43,495 have started transitioning. This takes no account of whether any particular group would be more likely to respond to the survey, whether people who have not started transitioning, people transitioning or people who have completed transitioning, so is an extremely crude figure. So I have limited it to one significant figure. I am quite sure the order of magnitude is correct. If there are 500,000 trans people, only a small fraction of those would transition or consider transitioning. People identifying as non-binary were not asked if they had a GRC, and they might. So that would change the figure. As GRCs have been awarded since 2005, some people with GRCs will have died, and some may have reverted, so the number of people living in the acquired sex with a GRC will be less than 4910. About 7500 non-binary people answered the survey.