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What’s Scotland’s Gender Recognition Reform Bill?

Scotland has created a reform bill that suggests amends to the Gender Recognition Act 2004 (GRA), which allowed trans men and women in the UK to change the sex listed on their birth certificates to reflect their lived identity. The new bill is called the Gender Recognition Reform (Scotland) Bill and it changes the process involved for an individual to get a gender recognition certificate (GRC), which legally recognises a person’s gender isn’t the gender they were assigned at birth but is their ‘acquired gender’, a legal term used in the Gender Recognition Act 2004. The GRC is a document showing that a person has satisfied the criteria for legal recognition of their gender.

The aim of the new Scottish bill is to:

• make it simpler for people to change their legal gender, as they propose to lower the minimum age from 18 to 16;
• switch a requirement of a psychiatric diagnosis and medical evidence to a system of statutory/self-declaration; and
• reduce the requirement for two years living “in-line” with your gender to three months, with a three month ‘reflection period’ between the application and date of issue of the certificate.

These changes would remove some of the key barriers that trans people face when changing their sex on their birth certificates and would give them greater autonomy over how they’re legally recognised. 

Why was this reform bill introduced?

Issues didn’t arise from the impact of receiving a GRC, but many believed the application process for obtaining one, and who could be legally recognised by a GRC, needed to be reformed. The current process had been described as intrusive, expensive and unfair, due to the excessive medical conditions required to be met for a successful application. This means that many trans people are excluded from changing their legally recognised gender.

Many human rights and equality organisations have criticised the law, saying that access is difficult. They conclude that too much emphasis is placed on psychiatric diagnoses and medical transition for an application to be successful. Nicola Sturgeon pledged to reform gender recognition laws, where she spoke of removing the need for an intrusive medical diagnosis and wanted to streamline the process for obtaining a GRC.

The Scottish government have been carrying out consultations on reforming the GRA, with the aim of making it easier for trans people to change their ‘legal sex’ on their birth certificate. The proposed changes to the bill would improve the current process and bring Scotland’s gender recognition in line with the approach taken in other countries, such as the Republic of Ireland. The reform bill promotes the autonomy of trans people over their legal gender and ensures a sense of inclusion among the trans community.

What are the issues arising from the bill?

There have been multiple concerns surrounding Scotland’s gender recognition reform bill, primarily concerning women’s rights and safety. There have been various concerns around the impact the bill will have on women’s and children’s safety, as many believe it offers the potential for predatory males to exploit the change to the GRC process to access vulnerable women. This would then adversely affect the security of women’s spaces and clash with women’s fundamental rights. There have even been more extreme warnings that the new law could prove an incentive for predatory sex offenders to come to Scotland. Due to these concerns, Rishi Sunak has stated that the UK government will need to assess the bill’s potential impact on women and women’s rights, suggesting that the government could block the bill. In response, Nicola Sturgeon insisted that the new measures don’t change women’s protections under the Equality Act. The Scottish government has supported this, arguing that the legislation is a simple administrative change and doesn’t extend transgender rights nor clash with those of women.

Aside from concerns about women’s safety, reducing the age from 18 to 16 to apply for a GRC may also cause concern. Although the incentive to do so may have been to promote autonomy to young individuals and allow them to make choices over their identity, it could be argued that individuals at 16 may be too young to make such a permanent choice about their gender. Many 16-year-olds can’t even make medical decisions without parental consent, so being able to make such a permanent choice may cause issues, especially since individuals develop and discover themselves from the ages of 16 to 18.

Although Scotland’s gender recognition reform bill promotes autonomy and is a step forward for the trans community, the concerns surrounding the bill need to be addressed by the Scottish government.