Gender identity is a hotly-debated topic. With identity politics in the news, and on everyone’s minds, here is your (hopefully straightforward) guide to the Gender Recognition Reform Bill.
Image Credit: Ken Jack – Pink News
What is the Gender Recognition Act?
The Gender Recognition Act originally came into effect in 2005. It allows transgender people to apply for a Gender Recognition Certificate (GRC). This means that their identity becomes their legally recognised gender, as opposed to the gender they are assigned at birth (male and female).
It also makes all information relating to a person’s transition and application process protected information. Any officials who attempt to acquire this information (such as an employer or lawyer) are breaking the law.
What does the Act actually say?
Before receiving this certificate, employers and organisations can exclude trans people from single and separate sex spaces as a ‘genuine occupational requirement (GOR).’ This refers to exceptions under the Equality Act 2010, where institutions can restrict access to certain sexes, religion and sexual orientations. For example, an all-girls school may refuse to admit a boy.
For trans people, this can include employment in single sex institutions, sports teams, and opportunities such as scholarships.
A Gender Recognition Certificate not only affirms identity, but protects trans and non-binary people from discrimination. You also need a GRC to change your gender on official documents such as birth, marriage and death certificates.
The precedent dates back to the 1970’s. Arthur Cameron Corbett, 3rd Earl of Rowallan, had his marriage to his transgender wife, April Ashley, annulled on the basis that she was ‘legally male.’
After investigation of other similar cases that followed it, the European Court of Human Rights ruled that the inability to change one’s legally recognised gender was a human rights violation, under articles 8 and 12 of the European Convention of Human Rights in 2002.
Image Credit: New Internationalist
How is it assessed?
Applications are currently assessed by a panel of medical and legal experts. To receive a certificate, you must be more than 18 years old, and pay a fee of £140. You must have received a medical diagnosis of gender dysphoria, and prove that you have been living as your ‘acquired gender’ for at least two years.
On top of that, you will require a notarized statement that you plan to continue living that way. If you’re married, you must also receive consent from your spouse.
Without spousal consent, you receive an Interim GRC, which can be used as grounds for annulling the marriage, and doesn’t have any other legal standing.
There is also currently no recognition for non-binary people under the Act at all.
What would the reforms mean?
The reforms would lower the application age from 18 to 16, and remove the need for a medical diagnosis. Applicants need only to have been living as their ‘acquired gender’ for three months, as opposed to the two years stated above.
After applying, you are also granted a three-month ‘reflection period’ before your application is filed. Applications would also go to the Scottish Registrar General, as opposed to a UK panel.
The decision would lie solely in Scottish hands, and could set a precedent for allowing more devolved power over equality legislation.
As well as this, misuse of the system (like making a knowingly false application), is punishable with up to two years in prison.
These reforms would make the process of acquiring a certificate, and the protections that come with it, easier and more accessible, as well as affirming trans identities and making them seem more legitimate. Independent research for the BBC in 2022 showed 57% of respondents were in support of this.
It’s important to remember that a GRC is a about the legal recognition of gender identity – not medical reassignment.
Organisations such as Stonewall argue that the need for a medical diagnosis (and living with one’s identity for two years) likens trans and non-binary identities to a mental illness, which they say is incorrect and derogatory to trans and non-binary people.
The Reform’s Journey through Parliament
The UK Equality Act 2010 means it is illegal to discriminate against those with ‘protected characteristics.’ Those undergoing gender reassignment are part of this group (remember, though, that GOR can still be a legal ground for discrimination against trans and non-binary people).
The Scottish Government argued that, to coincide fully with this Act, and international human rights laws, GRA reforms were legally necessary. The Scottish Government conducted the largest consultations in its history.
The first was on what reforms were needed. Over 15,500 responses were gathered. 60% of respondents found the need for medical evidence invasive. A reformed bill was drafted, and a second consultation was launched in late 2019, including a draft bill and assessments of what impacts it would have.
It received over 17,000 responses, most of which were in support of reform.
Image Credit: Equality Network
The Final Hurdle
In March 2022, reforms were drafted, and the Bill was submitted to the Scottish Parliament. After a series of consults and amendments, the Bill was eventually passed with a majority of 86 votes to 39. The Bill is well on its way to becoming law.
And then it went sideways.
The UK Government blocked the bill from receiving royal assent in January 2023, on the grounds that it would negatively impact the UK Government’s ability to perform their reserved equalities duties, under Section 35 of the Scotland Act. This is the law made when the Scottish Parliament devolved about what it can and can’t legislate.
The Scottish Government announced on the 12th of April 2023 that it will lodge a petition for Section 35 to be put under legislative review.
Essentially, the Scottish Government will take the UK Parliament to court.
Image Credit: Iain Masterton – The Times (left) and Charles Fox – Philadelphia Inquirer (right)
For and Against – Backlash and Advocacy
Backlash against the act comes largely from stigma around the perceived ‘threat’ of trans people, particularly trans women.
Victor Madrigol-Borloz, UN High Commissioner of Human Rights says:
“Throughout history, unsubstantiated myths falsely portraying marginalised groups of people as dangerous to others have been levelled to try to justify imposing arbitrary and deeply discriminatory restrictions on their human rights.”
Indeed, MSP Ash Reagan argues that the act poses a threat to the “safety and dignity of women and girls.”
The Chancellor of the University of Stirling, Jack McConnel,l believes the reforms will, “lure sex offenders to Scotland.”
However, support for the reforms is strong. LGBTQ+ charity, Stonewall commends the reforms, drawing attention to the self-identification systems in 34 other countries such as the Republic of Ireland, Argentina and Norway. No increase in sexual assault or threat to single sex spaces has been found anywhere self-ID systems exist.
Madrigol-Borloz said that:
“United Nations human rights bodies that have spoken on the matter have consistently found that legal recognition of gender identity through self-identification is the most efficient and appropriate way to ensure the enjoyment of human rights, and I am yet to learn of a country in which this is not the case.”
Image Credit: ILGA Asia – Global Citizen
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