Gender Recognition Reform (Scotland) Bill

Scottish Parliament
Long title	An Act of the Scottish Parliament to reform the grounds and procedure for obtaining gender recognition; and for connected purposes.
Introduced by	Shona Robison[1]
Other legislation
Amends	Gender Recognition Act 2004
History of passage through Parliament

The Gender Recognition Reform (Scotland) Bill is a bill passed by the Scottish Parliament, awaiting Royal Assent. The bill amends the Gender Recognition Act 2004 of the Parliament of the United Kingdom, making it simpler for people to change their legal gender.^[2]

The bill was included as part of the SNP manifesto for government at the 2021 Scottish Parliament election and included in the SNP-Scottish Green Coalition agreement.

The bill is currently awaiting Royal Assent. The government of the United Kingdom has been reported by media outlets as potentially blocking Royal Assent in the immediate future.^[3][4]

Background

In July 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 and Article 12 of the European Convention on Human Rights. Following this judgement, the UK Government had to introduce new legislation to comply.

In a June 2020 report, the European Commission classified the legal procedures for gender recognition of 28 European countries into 5 categories based on the barriers to access. This placed the UK's Gender Recognition Act 2004 in the second from bottom category with "intrusive medical requirements" that lag behind international human rights standards.^[5] 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.^[6]

Legislative process

Draft stage

The Scottish National Party, committed to "review and reform gender recognition law, so it's in line with international best practice for people who are Transgender" in their manifesto for the 2016 Scottish Parliament election,^{[7] [8]} The bill was subject to two public consultations at draft stage. The first, consultation on the principles of the proposals was launched 9 November 2017 and ran until 1 March 2018. This consultation received 15,500 responses, of which 60% were positive.^[9] In June 2019, then-Cabinet Secretary for Social Security and Older People Shirley-Anne Somerville announced a second consultation would be held on the details of the proposals. This consultation opened on 17 November 2019 and ran until 17 March 2020. It received 17,000 responses, the majority of which were positive.^[10][11][12]

The bill was scheduled to be introduced in 2020, but was delayed due to the coronavirus pandemic.^[13][14]

The bill was included as part of the SNP manifesto for government at the 2021 Scottish Parliament election and included in the Bute House Agreement after the 2021 Scottish Parliament election, where the SNP and the Scottish Greens formed a power-sharing coalition. The agreement committed to introducing a Gender Recognition Reform Bill before the end of May 2022.^[14][15][12]

Stage 1

The bill was introduced on 2 March 2022, by Shona Robison, the Cabinet Secretary for Social Justice, Housing and Local Government. The bill lowers the age people can change their legal gender from 18 to 16, removes the requirement of a medical diagnosis of gender dysphoria, and reduces the waiting time from two years to six months of living in an acquired gender.^[16] A delegated powers memorandum, financial memorandum, policy memorandum, and statement of legislative competence were also issued on 2 March 2022.^{[17][18][19][20]}

The bill was consulted on for a third time as part of the mandatory Stage 1 consultation which all bills before the Scottish Parliament are subject to, by the Scottish Parliament's Equalities, Human Rights & Civil Justice Committee. This committee was designated as the lead committee and ran thirteen evidence sessions.^[21][22]

The Delegated Powers and Law Reform Committee of the Scottish Parliament, issued a report to the Equalities, Human Rights & Civil Justice Committee, on 16 May 2022, regarding the delegated powers memorandum for the bill, which reported they were content with the delegated powers provisions contained within the bill.^[23]

The Finance and Public Administration Committee held a consultation on the financial memorandum, which received 6 responses, all of which were forwarded to the Equalities, Human Rights & Civil Justice Committee. The committee took no action based on the results of its consultation and recommended no changes to the financial memorandum. ^[24]

The Stage 1 report, from the Equalities, Human Rights & Civil Justice Committee, recommended that the general principles be approved.^[25]

Stage 1 vote

The bill was voted on by the full parliament on 27 October 2022 and passed by a majority of 88 to 33, with 4 abstentions and 4 members not voting.^[26][27]

Stage 2

A number of amendments were proposed made to the bill at Stage 2, the majority of which were not passed.

Amendments on guidance and support for applicants' aged 16 or 17; changes to the periods of time for applications surrounding terminal illness and 16 and 17-year-olds; a new offence of making a fraudulent application for a gender recognition certificate; processes on rejecting an application for a Gender Recognition Certificate; publication of information on the processes by the registrar general; the publication of reports relating to prisons and the unlawful disclosure of an individuals trans status; an overall review of the legislation and that the Equality Act 2010 is unaffected were passed.^{[28][29][30][31][32]}

The Finance and Public Administration Committee published an updated financial memorandum on 7 December 2022 on the bill and noted the updates at its meeting on 13 December 2022.^[33][24]

Stage 3

The bill is heard at Stage 3 on 20 and 21 December 2022, for amendments to the bill. The final debate and vote was held on 22 December 2022.^[34]

Equalities, Human Rights and Civil Justice Committee

On 19 December 2022, the day before the stage three debate began, the Equalities, Human Rights and Civil Justice Committee held an evidence session on the bill. They heard from two United Nations representatives, Victor Madrigal-Borloz, Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, and Reem Alaslem, special rapporteur on violence against women and girls.^{[35][36][37][38][39]}

Stage 3 vote

The bill was voted on by the full parliament on 22 December 2022 and passed by a majority of 86 to 39, with 0 abstentions and 4 members not voting.^[40] The announcement of the result was accompanied by cheers from supporters in the chamber, and shouts of “shame on you” from protesters in the public gallery.^[41]

Opinion on the bill

Support

The bill was supported by many feminist, LGBT and human rights campaign organisations, including Amnesty International, Stonewall, Rape Crisis Scotland, Equality Network, Engender, Scottish Trans Alliance, and Scottish Women's Aid.^[42][43]

The SNP, Scottish Greens, Scottish Labour and Scottish Liberal Democrats supported the bill.^[44]

The First Minister of Scotland, Nicola Sturgeon, has championed the bill, stating that she wouldn’t “apologise for trying to spread equality”. Sturgeon also insisted that nothing in the bill would produce any more threat to the safety of women.^[45]

Council of Europe Human Rights Commissioner Dunja Mijatović described the bill as following international best practice.^[46]

Upon finding out that the bill could be revoked by the United Kingdom’s government, SNP politician Mhairi Black warned Rishi Sunak and his government that doing so would be an “attack on Scottish democracy”.^[47]

Opposition

The bill was opposed by the Scottish Conservatives,^[44] the Catholic Bishops' Conference of Scotland,^[48][49] and feminist and LGB organisations such as For Women Scotland, Fair Play for Women and the LGB Alliance.^[50]

Moreover, prominent figures, most notably author JK Rowling,^[51] opposed the bill, as did many other feminists.^[52] Many members of the United Kingdom’s population also expressed concern that the Bill reinforced gender stereotypes and undermined the sexual orientation of homosexuals.^[53]

Ash Regan was one of 15 senior SNP politicians, a list including current Finance Secretary Kate Forbes and Business Minister Ivan McKee, who signed a letter in 2019 urging the Scottish leadership not to "rush" into "changing the definition of male and female".^[54] Additionally, Forbes commented in 2021 that her “hope would be that nobody’s voice is silenced in this debate”.^[55]

The SNP MP Joanna Cherry, a lesbian woman widely considered as an advocate of women’s rights, was sacked from her job as justice spokesman in 2021 after she opposed her the plans of her party. Moreover, Cherry claimed she later received “very threatening messages” SNP from a party member concerning her views.^[56]

Resignation of Ash Regan

On 27 October 2022, ahead of the Scottish Parliament's stage one vote, a vote on the principles of the bill, the Scottish National Party's community safety minister Ash Regan resigned, claiming she was concerned that the bill could "have negative implications for the safety and dignity of women and girls".^[57] In her letter accepting Regan's resignation, the First Minister Nicola Sturgeon claimed that Regan had not approached her or the cabinet secretary leading on the legislation to voice those concerns.^[58]

Opinion polls

A 2021 poll conducted by Survation, commissioned by analysts Blackburn Hunter Mackenzie, came out with results that a plurality of Scottish voters oppose transgender people declaring their own gender without a medical diagnosis.^[59]

A more recent poll concluded that more than 2/3 of Scotland’s voters opposed the bill,^[60] and a poll conducted by CARE, an organisation working to prevent self-harm, gambling and suicide, found that 60% of Scots opposed the bill.^[61]

Finally, a survey conducted by the Government of Scotland recieved 687 comments from those who were in favour of the Bill, and 4,768 from those who were against the Bill. While supporters mentioned that they believed the legal and administrative process changing gender would be less “traumatic” and “intrusive” for transgender people, those opposing the bill expressed their concerns that children and young people are too young to make such “life altering” decisions, that could lead to the use of “puberty blockers” and surgery. Additionally, such people also cited the fact that the prefrontal cortex, a part of the brain which influences thinking and cognitive control function, does not fully develop until the age of 25.^[62]

However, another poll commissioned for the BBC, conducted by Savanta ComRes, found 57% of Scots supported making it easier to obtain a Gender Recognition Certificate though a majority opposed reducing the age for this from 18 to 16. The same poll found that over 40% of people supported self-identification, compared to 37% against it.^[63]

Questions have been cast on the validity of some of such polls, as their data and results can be manipulated to push an agenda. However, this is unlikely, and differing results are most likely down to sample size or location, as certain areas of Scotland may be more pro-gender reform than others.^[64][65][66]

See also

• LGBT rights in Scotland
• Gender self-identification
• Nicola Sturgeon
• Ash Regan

References