Fairer Scotland

Reforming gender recognition in Scotland

June 20, 2019 by 2 Comments | Category Equality

Today, I announced that I will publish a draft Gender Recognition (Scotland) Bill, which would reform the current process of obtaining a Gender Recognition Certificate.

I also made clear that this draft bill will be subject to a full consultation and will be accompanied by an equality impact assessment. I will introduce the legislation only when that has taken place, and when I know we can introduce a bill which has the support of the Scottish Parliament and the public.

Whilst people have valid concerns about our proposals, we cannot assume that support will be there or that it will build over time. Therefore I want to address those concerns and ensure there is full and accurate understanding of what we are proposing, and put to rest – to be frank – the misunderstanding which surrounds the plans. 

There are two points worth emphasising here. Firstly, trans men and women have been able to legally change their gender identity for 15 years now. This is simply about changing the process by which they exercise that right. I believe the current requirement for applicants to produce medical evidence is too complex and I have heard many times that the process can be traumatic and stressful.

Secondly, this is not unprecedented. The Republic Of Ireland, Denmark, Belgium and Norway are just some of the countries which have already moved to a similar process, and the UK Government has consulted on similar proposals.

We are proposing that applicants should no longer be required to provide medical evidence of a diagnosis of gender dysphoria to apply for a Gender Recognition Certificate. They will still be required to make a statutory declaration in front of a justice of the peace or a notary public saying they have been living in their acquired gender for a minimum of three months and intend to do so permanently.

Making a false statutory declaration will continue to be a criminal offence punishable by up to two years imprisonment. We also propose the introduction of a three month period of reflection after which the applicant will need to confirm they wish to proceed.

In addition we will consult on whether the minimum age of applicants should be reduced from 18 to 16 but we are not proposing legal gender recognition for under 16s. And we will seek views on what support is needed generally for children and young people uncertain of their gender identity.

I have heard directly from young trans people of the fears they face, so central to this is ensuring that all young people have access to support from a trusted adult who they know will listen sympathetically and without judgement, whether that be from a third sector organisation or mental health and wellbeing service.

That all said, I am aware of the real concerns that people have about changing the current process and the Scottish Government has a duty to address that. One issue which has been raised about gender recognition reform is the impact it will have on the provision and protection of single sex or women only spaces and services.

The Equality Act is nearly a decade old now and is clear that where it is proportionate and justifiable, trans people can be excluded from certain single sex services. This applies even where a trans person has legal recognition. Our proposals to reform the Act will not change that position.

The Scottish Government will continue to promote and protect women’s rights just as we will do so for trans rights. This is not, and will not be at, the expense of the rights of any other group.

Guidance will be developed on collectively upholding rights and equality for women and trans people in policy and service delivery. This will be used across the Scottish Government and made available to all public authorities and will also be publicly available. I appreciate these are complex issues, and we want to help to bring some clarity in this area. 

Taking forward this work will help us to ensure the rights hard won for both trans people and for women are maintained and that we build upon the progress we have made.

I am also going to address the collection, disaggregation and use of data by sex and gender. Under the Chief Statistician, the government is establishing a working group on sex and gender in data comprised of professionals from across statistical services. The working group will also consider what guidance should be offered to public bodies on this issue.

All of these issues need to be considered carefully, openly, thoughtfully and respectfully. I hope, that as we take forward our consultation, that will happen so we can bring forward balanced and evidenced proposals and legislation which can be agreed by all.


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  • Marie Mcphelim says:

    I am totally against these proposals of self declaration and 3 months is not long enough. Women have a right to feel safe in a ladies toilet without any man coming in dressed as a woman causing distress. I don’t think the scottish government should have the last say in this and a vote of the people should be considered.

  • Alan Henness says:

    You said:

    “The Equality Act is nearly a decade old now and is clear that where it is proportionate and justifiable, trans people can be excluded from certain single sex services. This applies even where a trans person has legal recognition. Our proposals to reform the Act will not change that position.”

    As employment and discrimination Barrister Naomi Cunningham said:

    “Saying changing the GRA doesn’t change the EqA is like saying “It’s ok everyone, we’re keeping the door locked just as it always was” while making massive changes to your criteria for handing out keys.”


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