A Frolic of Its Own: Scotland and Gender Recognition Reform
By James Esses
On 2nd March 2022, the Scottish government introduced the ‘Gender Recognition Reform (Scotland) Bill’ before the Scottish Parliament. The purpose of this Bill is to, in effect, supersede the existing legislation on gender recognition in the UK, namely, the Gender Recognition Act 2004. This is the legislation that enables individuals who have fulfilled certain criteria to obtain a gender recognition certificate, thereby legally changing their gender.
This is a completely different stance taken to the UK government, who, following a national consultation, announced on 18th February 2022 that they would not be making any significant changes to the existing legislative process. Liz Truss, Minister for Women and Equalities, said at the time that “it is the Government’s view that the balance struck in [the GRA] is correct, in that there are proper checks and balances in the system and also support for people who want to change their legal sex”.
Whilst gender recognition is a matter that is devolved in Scotland, and therefore they are legally entitled to deviate from the course that the UK government as a whole takes, the question here is why? Particularly, when the implications and unintended consequences could be huge.
The Bill that has been introduced before the Scottish Parliament makes a number of significant changes to the law, particularly:
1. Removing the requirement for a diagnosis of gender dysphoria in order to obtain a gender recognition certificate
This is by far the most concerning proposed change. Gender dysphoria is a mental health condition. Currently, the requirement for such a diagnosis acts as a safeguard and gatekeeper for those in the UK who wish to transition, either legally or medically. If we remove this requirement, we risk missing individuals for whom transitioning is not the appropriate pathway and for whom exploratory therapeutic support would be the best option for them.
Caroline Nokes MP, who Chairs the Women and Equalities Select Committee in Westminster, and who has called for reform of this legislation, has previously recommended a “de-medicalisation” of the gender recognition process. The paradox is plain to see. On the one hand, we are told that we should not ‘medicalise’ or ‘pathologise’ being trans. On the other hand, we are told that we must make irreversible medication and surgery available to treat gender dysphoria. This is fundamentally inconsistent.
Furthermore, this change, in effect, brings about a system of ‘self-ID’, something which is of concern to many, given the potential safeguarding concerns around same-sex spaces.
2. Lowering the age at which one can obtain a gender recognition certificate to 16
This goes even further than the Women and Equalities Select Committee in Westminster had previously proposed, with their report stating: “18 is a suitable age for a person to consider the current and future ramifications of legally transitioning”.
The Scottish government have justified this change by listing various things that 16-year-olds are legally entitled to do in Scotland. However, as we know, the potential ramifications from transitioning can be life-long. We are seeing more and more detransitioners emerge, scarred both mentally and physically from what they have been through.
By allowing those still considered under law to be children to legally change their gender, are we not, in effect, setting a precedent for and creating a slippery slope towards transitioning amongst children?
3. Reducing the period for which an applicant must have lived in their acquired gender before making an application from two years to three months
Again, this provision simply waters down the existing checks and balances, which are there in place to ensure that those who wish to legally transition are both genuine and satisfied that it is the correct pathway for them.
The Scottish government’s justification of the above package of changes is that the current system for obtaining a gender recognition certificate is “intrusive and takes a long time”. That may be so. However, surely when it comes to safeguarding children and protecting same-sex spaces for women, such time and scrutiny is required?
Then again, this is hardly surprising, particularly when many politicians and commentators in Scotland have very clearly come down on the side of gender ideology in this complex and sensitive ongoing debate.
Throughout the Scottish government’s material on the Bill, I have come across ideological language being used, such as saying that “gender is assigned at birth”. It has become increasingly clear that they do not take a nuanced view of this topic.
It will be particularly interesting to see whether, in pursuit of ideology, the Scottish government bulldozes its way through sensible advice and public concerns.
For example, the Equality and Human Rights Commission (EHRC) recently stated that no changes to gender recognition should be made until detailed consideration has been given to the concerns of lawyers and academics in this field. To date, the Scottish government does not appear to have taken their advice.
Equally, the Scottish Equalities, Human Rights and Civil Justice Committee ran a call for views on the Bill between 21st March and 16th May 2022. Of the 11,154 submissions, 59% disagreed with the overall purpose of the Bill and over 60% believed that the requirements for a diagnosis of gender dysphoria and the age limit of 18 should be maintained. Will the Scottish government listen to the majority on this important issue?
Thankfully, this Bill is still in its early stages and committees are examining its content and gathering views before it will be considered formally in the Chamber. It has also been good to see a diverse range of individuals and organisations giving evidence before the Equalities, Human Rights and Civil Justice Committee – including representatives from Sex Matters, LGB Alliance and For Women Scotland.
However, given the communications put out by the Scottish government to date, the cynic in me believes that the implementation of this Bill as it currently stands is merely a foregone conclusion. I hope that the Scottish government considers the significant unintended consequences that could come about if this legislation is passed. However, if the powers that be remain blinded by ideology, I have little hope that they will.
James Esses is a regular writer for Genspect and a co-founder of Thoughtful Therapists.