Briefing: Scottish Government consultation on review of the Gender Recognition Act 2004

 

The Scottish Government is currently consulting on proposed reform of gender recognition legislation.

 

Existing legislation, the Gender Recognition Act 2004, allows a person who wishes to change their legally recognised gender to apply to the Gender Recognition Panel to obtain legal recognition of their acquired gender. There are certain requirements before someone may legally change their gender. One is that the individual should have lived in their acquired gender for at least two years, another is that they must satisfy the Gender Recognition Panel that they have gender dysphoria and provide two medical reports to this effect.

 

The Scottish Government believes that the requirements laid down in the 2004 Act are too intrusive and onerous. Proposed reforms include removing requirements for applicants to provide medical evidence of gender dysphoria and to have lived in their acquired gender for two years before applying. Some requirements would remain, such as applicants having to provide a statutory declaration to confirm they fully understand the implications of their application and intend to live in their acquired gender for the rest of their lives.

 

The consultation proposes that the minimum age for applying for legal gender recognition should be reduced from 18 to 16. The consultation also discusses what arrangements should be put in place in relation to applications by, or on behalf of, those aged under 16.  And it seeks views on what recognition should be given to non-binary people, who do not identify as either male or female.  In both of these areas, the consultation outlines a number of potential options, and seeks views.

 

You are encouraged to respond to this important consultation. You may answer some or all of the questions. This briefing paper provides some points to consider in answering seven of the questions in the consultation paper. You must always use your own words when responding to a consultation.

 

You can access the consultation via this link. The consultation closes on 1 March 2018.

 

Question 1

The initial view of the Scottish Government is that applicants for legal gender recognition should no longer need to produce medical evidence or evidence that they have lived in their acquired gender for a defined period. The Scottish Government proposes to bring forward legislation to introduce a self-declaratory system for legal gender recognition instead.

Do you agree or disagree? Please provide comments.

  • It is important to state at the outset that many do not believe that gender identity is a matter of choice, or something that may be entirely divorced from the biological sex in which we are born. Many believe rather that as individuals we are called to acknowledge and strive to accept our sexual identity and the physical, moral and spiritual differences and complementarities which flow from this.
  • The Catholic Church remains steadfast in its conviction that gender cannot be reduced to a mere construct of society that is fluid and changeable. However, at the same time society in general must remain unwavering in its concern for those who experience gender dysphoria and will expect those in authority to ensure appropriate support is available to those who need it.
  • The Diagnostic and Statistical Manual of Mental Disorders, 5th Edition: DSM-5, of the American Psychiatric Association, continues to recognise gender dysphoria as a genuine, troubling medical condition. By moving to a self-declaratory model and de-medicalising the wish to transition legally we may fail to provide the necessary support for those affected by gender dysphoria in the form of contact with health professionals.
  • The decision to change gender is a matter which should never be taken lightly and appropriate medical and psychological support must be provided.

 

Question 2

Should applicants to the proposed gender recognition system in Scotland have to provide a statutory declaration confirming they know what they are doing and intend to live in their acquired gender until death?

  • Statistical evidence reveals that people sometimes ‘de-transition’ after years of living in the acquired gender and even after sex reassignment surgery. The growing number of internet testimonies of de-transitioned adults highlight the reality that people change their minds in the matter of their gender (see http://www.sexchangeregret.com/).

 

Question 5

The Scottish Government proposes that people aged 16 and 17 should be able to apply for and obtain legal recognition of their acquired gender. Do you agree or disagree?

  • The UN Convention on the Rights of the Child defines children as those under the age of 18 years.
  • Sixteen and seventeen years of age is a testing time in the life of a young person: it is a very important formative phase and a time fraught with much uncertainty, confusion and vulnerability.
  • According to the Diagnostic and Statistical Manual of Mental Disorders, “in natal [biological] males, persistence of [of gender dysphoria] has ranged from 2.2% to 30%. In natal females, persistence has ranged from 12% to 50%”. These relatively low overall levels of persistence of gender dysphoria in children should be taken seriously by the Scottish Government which must ensure that adequate clinical support is given to all people who experience gender dysphoria. Allowing children and young people to legally change their gender when the likelihood is that they will or might well be reconciled with their birth gender in the long term seriously fails the child.

 

Question 6

Which of the identified options for children under 16 do you most favour?

  • The UN Convention on the Rights of the Child defines a child as someone under the age of 18 years. The Scottish Government must be extremely careful in its approach to legislating in this area.
  • The lives of children of this age are fraught with much confusion and vulnerability – even in matters of sexual orientation and sexual identity – is it appropriate to entertain the possibility of allowing an underage child to legally change their gender?
  • Nobody should treat gender dysphoria lightly. The suffering of those with gender dysphoria must be taken seriously and they must receive all necessary support, including support with their mental health, from health care professionals.
  • Allowing children of this age to legally change their gender increases the likelihood that they will seek or be offered irreversible surgery.
  • According to the Diagnostic and Statistical Manual of Mental Disorders, “in natal [biological] males, persistence of [of gender dysphoria] has ranged from 2.2% to 30%. In natal females, persistence has ranged from 12% to 50%”. These relatively low overall levels of persistence of gender dysphoria in children should be taken seriously by the Scottish Government which must ensure that adequate clinical support is given to all people who experience gender dysphoria. Allowing children to legally change their gender when the likelihood is that they will or might well be reconciled with their birth gender in the long term seriously fails the child.
  • The ability of a child of this age to understand the momentous decision to change gender and to appreciate the consequences must also be questioned.

 

Question 7

Should it be possible to apply for and obtain legal gender recognition without any need for spousal consent?

  • Each party to the marriage is of fundamental importance in terms of the relationship, and especially in terms of the equality of the parties, and neither party should be permitted to ‘reframe’ the marriage in such a radical way in legal terms, that the original context no longer pertains.
  • The possibility of a party refusing consent to legal gender recognition, which would leave him or her in a same-sex marriage he or she did not freely enter, should be retained.

 

Question 12

Should Scotland take action to recognise non-binary people?

  • Non-binary people, estimated to be 0.4% of the UK population, already have the option on many official forms of ‘preferring not to say’.
  • There is also a significant legal and administrative impact to the introduction of a third category of gender.
  • There would be significant costs to the state and to businesses so that any new legal rights for the very small number of people who identify as non-binary might be facilitated.

 

Question 16

  • For the sake of the Common Good of society gender cannot be reduced to a mere construct that is fluid and changeable. In fact, the Common Good requires that we remain unwavering in love and acceptance of those who experience gender dysphoria and, further, ensure that those in authority provide appropriate support to those who need it.
  • The rights of conscience and freedom of religion must be protected for those who do not subscribe to the idea that gender is fluid. This is particularly important for those who work in education, for healthcare workers, marriage celebrants, and religious representatives.

 

You may also be interested in the briefing issued by the Anscombe Bioethics Centre, Oxford. You can access the briefing via this link