The British government has blocked legislation passed by the Scottish parliament, The Gender Recognition Reform (Scotland) Bill, that would make Scotland the first part of the UK to introduce a self-identification system for people who want to change gender.
The Scottish secretary, Alister Jack announced that he would use section 35 of The Scotland Act 1998 for the first time to halt the gender recognition bill after a review by UK government lawyers.
The Scottish government wants to simplify and speed up the existing process by which people can obtain a gender recognition certificate - the legal recognition of a trans person's "acquired" gender.
At present, people apply to a UK gender recognition panel and typically must present a diagnosis of gender dysphoria. This is defined by the NHS as being caused by a "mismatch" between their biological sex (whether they were born physically male or female) and their gender identity (the way in which they see and describe themselves). Applicants need to provide two medical reports, one from a specialist detailing their diagnosis and another listing any treatment or surgery they may have had to change their sexual characteristics.
They must also prove they have lived full-time in their acquired gender for at least two years - for example showing they have used a different name in official documents or changed their gender on their driving licence or passport. They must also swear an oath that they intend to continue for the rest of their lives.
The Scottish government argues that the current process is too difficult and invasive, and causes distress to an already marginalised and vulnerable minority group. Its plans would see applications handled by the Registrar General for Scotland, rather than the UK panel. No diagnosis or medical reports would be required and the period in which applicants need to have lived in their acquired gender would be cut to three months.
The Gender Recognition Reform (Scotland) Bill
The Gender Recognition Reform (Scotland) Bill would officially change the process to get a gender recognition certificate (GRC). A GRC is a certificate that legally recognises that a person’s gender is not the gender that they were assigned at birth, but is their “acquired gender”.
The current process for obtaining a GRC is set out in The Gender Recognition Act 2004. This Bill amends that Act to make a new process in Scotland.
The Bill sets out:
It also makes provision about:
The Bill aims to improve the process for people applying for legal gender recognition. The Scottish Government considers that the current system is intrusive and can take a long time, which can have a negative impact on applicants. The Scottish Government has two specific concerns, which the Bill would mitigate:
The Scottish Government considers that the process set out in the Bill is a balanced and proportionate way of improving the current process of obtaining legal gender recognition and has included two elements to the Bill to ensure this:
The Bill aims to simplify the process which the Scottish Government considers to be complex.
In theory, only a small number of people would be directly affected by any reforms, with the NHS estimating that transgender people make up about 0.5% of the population.
By comparison, Ireland made similar changes in 2015 and by 2020, had granted an average of 115 applications per year. Since September 2015, trans people in Ireland can apply to have their preferred gender legally recognised by the State. This is set out in the Gender Recognition Act 2015.
Anyone over 18 can apply to change their gender. You can also apply if you are aged 16 or 17, but the process is slightly different and may take longer. If you are under 16, it is not possible to change your gender that is recognised by the State. When you legally change your gender, you are given a gender recognition certificate. This certificate can also state your new name, if you have chosen to change it. Once you have a gender recognition certificate, you can then apply for a revised birth certificate.
The Gender Recognition Act 2015 came into being following the 2007 High Court ruling that Ireland was in breach of the European Convention on Human Rights in not having a process to legally recognise the acquired gender of transgender people.