Comments on the Scottish 2023 Gender Recognition Act

 Legal and Legislative stuff

February 1971. In the final ruling in Corbett vs Corbett, Justice Roger Ormrod redefined legal intersex status as the discordance at birth of chromosomal, gonadal and genital sex, and only then are psychological factors to be taken into consideration. Corbett v Corbett became case law in the UK and in Australia. The correcting of birth certificates for many intersex and all transgender persons ceased, and such persons lost the legal right to be treated as their new gender – in particular to marry a person of the now opposite gender.

2002 The European Court of Human Rights ruled in the Goodwin v United Kingdom case that a trans person's inability to change the sex on their birth certificate was a breach of their rights under Article 8 (privacy) and Article 12 (marriage) of the European Convention on Human Rights.

2004 The UK Gender Recognition Act (GRA). To obtain a Gender Recognition Certificate (GRC) an applicant must a) provide evidence of a diagnosis of gender dysphoria; b) have lived in their "acquired gender" for two years; and c) make a statutory declaration that they intend to live in the acquired gender until death.

---- The Scottish Parliament passed a motion to consent to the UK’s GRA, so that a uniform system of gender recognition would be in place throughout the UK.

2010 The Equality Act includes provisions for single-sex services where the restrictions are "a proportionate means of achieving a legitimate aim".

2017 Theresa May, then Prime Minister, pledged to streamline and demedicalise the process for changing gender.

2017-18 The Scottish government consulted the public re reforming the law and found a majority of the 15,500 respondents in favour of removing most of the requirements for a GRC.

2018 A consultation in England and Wales found that a majority of the over 100,000 respondents were in favour of removing most of the requirements for a GRC.

2019-20 The second Scottish consultation on a draft bill also found majority support.

2019-22 Boris Johnson appointed Liz Truss as Minister for Women and Equalities. She was LGBT+ negative.

2020 The Boris Johnson UK Government announced that it would not legislate to relax the requirements.

2021 A report by the Council of Europe classified the legal procedures for gender recognition of 28 European countries into five categories based on the barriers to access. This placed the UK's Gender Recognition Act 2004 in the second from bottom category (along with Hungary, Poland, Turkey and Russia) with "intrusive medical requirements" that lag behind international human rights standards. The procedures have also been described as costly, bureaucratic, and time-consuming for trans people, with successful applicants having to wait two years until they can change their legal gender.

March 2022 A Scottish GRC bill was introduced which removes the requirement of a medical diagnosis of gender dysphoria (replaced by self-identification), and reduces the required time of living as the acquired gender from two years to six months. It also has provisions for revocation of a GRC and offences in connection with false information being provided in an application.

October 2022 Rishi Sunak appointed Kemi Badenoch as Minister for Women and Equalities. She is on record as feeling ‘empowered’ to push back against trans rights.

December 2022 The final reading of the Scottish GRC bill was voted on by the full parliament. It was passed by a majority of 86 to 39, with 4 members not voting. The Greens and the Liberal Democrats voted unanimously for the Bill; the Scottish National Party voted for it 54 to 9 with 1 not voting; Labour voted for it 18 to 2 with 2 not voting -- however the Conservatives voted 28 to 3 against the Bill.

---- In the same week the Spanish parliament passed a similar law, that is with self-identification and a minimum age of 16 (see details at the end of this posting)

January 2023 The UK Government’s Scotland Secretary announced that the he would make an order under section 35 of the Scotland Act 1998, which would prevent the bill from proceeding to royal assent. This is the first time royal assent has been refused to a bill passed by the Scottish Parliament since its creation in 1999. It is also the first post-legislative veto of a Scottish bill since 1708.

---- in the same week, the Church of England re-asserted that it will not marry same-sex couples.

Issues

Let us start with self-identifying. As both the DSM and the ICD have made significant steps towards the depathologization of being trans, it is now established that being trans is not a mental disease, and thus there is no need to be certified as sane or genuine by a psychiatrist. If a psychiatrist is not required then one decides for oneself whether to transition or not. The fact that the wait to see an appropriate psychiatrist often takes many years is another reason to scrap the requirement.

Self-identification is established in law and in practice in Ireland, Argentina, New Zealand, Norway etc. If self-identification is the mistake that certain persons maintain, then how come they do not have story after story after story of how it went wrong in those countries?

The 2004 UK Gender Recognition Act was more needed then than now in that at that time there was a 5-year gender difference in the official retirement age, and same sex marriage was not allowed – which meant that a heterosexual trans woman was not allowed to marry a cis man. Neither of these circumstances apply any more. The official retirement age is now 66 and a few months for all. Any adult may now marry any other adult except close relatives.

The major reason to get a GRC is that it is required to reissue one’s birth certificate with the new name and gender. The main reason to bother with this is that employers require seeing it when one starts a new job.

Twice, after transition and before 2004, I did work in London. I did not even have my birth certificate with me. I did contract work. One can incorporate as a small business without a birth certificate. I do have a GRC. I found dealing with the Gender Recognition Board quite frustrating – especially as they wanted me to divorce the husband whom I had officially married post completion surgery. I almost gave up, but persevered because I got a small UK pension at age 60.

Even without a GRC one can change name and gender on a driving licence and on a passport. And one can change a legal name – in fact this should be done before applying for a GRC, for the GRC will use your legal name at that time. And of course no laws dictate which gender you should dress as.

Let us look at some of the voiced objections to the new Scottish law.

Several of the objections to the Act mention violations of single-sex services or space. This is perverse in that these are protected by provisions in the 2010 Equality Act, which is not altered in any way by the new Scottish GRA. The new GRA merely speeds up the process to get a GRC and then a revised birth certificate.

1. It makes switching back and forth too easy. As one still has to demonstrate living as the target gender for a period of six months this is hardly the case. If A, assigned male at birth, lives as female, she is able to apply for a GRC six months later. If she then later regrets this, A will then have to live as man for another six months before applying for a new GRC, and second revision of his birth certificate. Hardly an easy switch back and forth. Also the Scottish GRA would notice the switching and may refuse to grant a second GRC.

There are in fact persons who do switch their gender back and forth – sometimes called oscillators. It is very unusual for such a person to even apply for a GRC. Why would they? Well maybe if working in the target gender, but otherwise living as the birth gender. Does anyone know of any such person?

1. 2)      Men with a GRC would harass women in women’s toilets.   Really!  No one is required to show a GRC to use the toilets.  Men with such intentions are not dissuaded by not having a GRC.  They probably don’t even attempt to cross-dress. 

   3)      16 is too young to apply for a GRC.   Remember that the person needs to document living in the target gender for six months.   At 16 one can join the armed forces (the UK is the only country in Europe that recruits persons under 18) and can therefore be killed.  If they sign up at 16, they are obliged to stay for six years.  Currently 16-year-olds can marry, but this was removed by The Marriage and Civil Partnership (Minimum Age) Act 2022 which will come into effect next month, raising the minimum age to 18. At 16 one cannot drink alcohol in public (although at home is okay), cannot vote and cannot sign contracts.  In practice 16-year-old persons applying for a GRC are very likely to be trans kids with parental support, and are likely to age through to 18 during the process of first puberty blockers and then hormones.   However  – this is important – gaining a GRC does not approve one for puberty blockers, gender hormones or any surgery.   One still needs to do the very long wait to be approved at a Gender Identity Clinic, or – if rich enough – fly to Thailand or elsewhere for private surgery.  The GRC is only a document, and can be reversed.

   4)      One would be able to get a Scottish GRC and then live and work in England.   Yes – what is the problem?   The UK has a process for recognising Irish, New Zealand etc equivalents of a GRC.   Why should a Scottish one be different?  

   5)      Some seem to be obsessed with the idea that rapists will apply for a GRC thinking that it opens the door to female spaces.   As discussed, the rapist who somehow succeeds at this (and most cis men doing drag are not convincing as trans women) will have a female birth certificate and will have an interesting discussion when applying for his next job.  He will also have committed an offence.   The rapist may fantasise about doing so, but the practical considerations will dissuade him.

• Jake Mckee. “Everything you need to know about Gender Recognition Certificates and how they help trans people”. Pink News, Jan 12 2023. Online. 
• “In Response To A Comment”. The Cracked Crystal Ball, January 18, 2023. Online.
• “The Guardian view on Scotland’s gender reform bill: understand more, condemn less”. The Guardian, 18 Jan 2023. Online.
• Amelia Hansford. “Politicians and activists march on Downing Street to protest blocking of Scotland’s gender bill”. Pink News, Jan 19 2023. Online.
• Shona Robison. “Westminster has dragged trans people into its attack on Scotland’s powers”. The Guardian, 19 Jan 2023, Online.

EN.Wikipedia         Scottish Trans

It is too soon to see if the UK veto will increase independence votes in Scotland. However it is likely.   Guardian.  Craig Murray. 

“Royal assent” here has nothing to do with Charles Windsor (named in honour of two 17^th century tyrants). It was decided by the Rishi Sunak cabinet. Not that Charles Windsor has ever lifted a hand to help LGBT+ causes, and he now presides over the homophobic Church of England and the mainly homophobic Commonwealth.

In the same week in December:

Spain's lower house of Parliament approved disputed reforms, allowing people over 16 years of age to change their legally registered gender without any medical supervision.

Under the Spanish law, drawn up by the center-left coalition government, minors aged 12 and 13 will need a judge’s authorization to make the change, while those between 14 and 16 will have to be accompanied by their parents or legal guardians.

Up to now, Spanish transgender people needed a diagnosis by several doctors of gender dysphoria, which is the psychological condition of not feeling a match between one’s biological sex and gender identity.

In some cases, they also needed proof they had been living for two years as the gender they identified with — or even records showing they had taken hormones.

The new rules require anyone applying for a Gender Recognition Certificate to have lived full-time in their declared identity for three months – six months if they are between 16 and 17 years of age – as opposed to the previous period of two years.