Welcome to our campaign to Save Our Sex in Scottish law and life. After ignoring the concerns we all raised in previous public consultations, failing to address issues raised by women’s groups, and even disregarding the Equality and Human Rights Commission’s advice to give the matter more consideration, the Scottish Government is continuing on its merry way to amending the law to make a person’s sex a matter of personal choice rather than an objective reality.
We have a couple of action points which we hope as many people as possible will complete. It’s really important we get our views across to the MSPs on the Committee scrutinising the reform Bill and to all our MSPs who will shortly be voting on it.
The Gender Recognition Reform Bill has recently been published and is at Stage 1 of its passage through Parliament. The Committee looking at the Bill has asked for people to submit their views – please read our guide on submitting the form. Anyone can respond, you don’t need to be in Scotland. It’s seven Yes/No questions and a comment box. Deadline for responses is 16 May 2022.
At the end of Stage 1 all the MSPs will vote on whether the Bill passes through to the next stage. Please use our quick and easy way to write to all eight of your MSPs and ask them not to vote for the Bill if it still proposes to remove the important safeguard of a medical diagnosis. We have provided some suggested text but do feel free to amend it to suit.
Frequently Asked Questions about the proposed reform:
What is the Gender Recognition Act (GRA)?
In 2002 the European Court of Human Rights ruled that it was a breach of human rights laws for Christine Goodwin (a post-op male-to-female transsexual) not to be able to marry a man, or retire at the same age as a woman.
As a result the UK Government brought in the Gender Recognition Act 2004. This law allows adults who have a diagnosis of gender dysphoria (severe distress with their sexed body) and a proven commitment of living in the role of their acquired gender to apply for a Gender Recognition Certificate (GRC) and obtain a new birth certificate which records them as the opposite sex.
A GRC gives the person some of the legal rights of the opposite biological sex, but not all. Exceptions apply where an applicant’s biological sex supersedes their new legal sex. This includes sports, single and separate-sex services, peerages, status as a mother or father, various benefits, job requirements, and religious exceptions.
These exceptions are fiercely debated and occasionally subject to court action. According to existing case law regarding prisons, a GRC-holder may have a stronger claim to access spaces and services provided for the opposite sex than a person without a GRC. The Scottish Government takes a different view and claims holding a GRC makes no difference at all and that non GRC-holders can equally access women’s spaces. And of course, our recent court win proved that wrong with the ruling that a women-only provision must exclude all biological males. It is in this climate of unsettled and contested law that the Government plans to legislate. This will only exacerbate the situation.
What does the Scottish Government want to do?
They believe the current application process is dehumanising and traumatic and propose amending the GRA to simplify the process by:
- removing the need for a medical diagnosis,
- reducing the living in role period from 2 years to 3 months (with a 3 month reflection period), and
- reducing the minimum age from 18 to 16 years old.
Instead, an applicant will sign a form, self-declaring themselves to be the opposite sex.
These proposals are detailed in the Gender Recognition Reform Bill, which was published on 2nd March 2022 without considering the advice issued by the Equality and Human Rights Commission, which asked for a more careful consideration of the effect the reform will have on women’s sex-based rights under the Equality Act. The Government also broke its election manifesto commitment to work with women’s groups, amongst others, to determine the best way to reform the legislation.
Is the application process dehumanising?
No. The current process is based on medical need as demonstrated by a medical diagnosis of gender dysphoria and a second medical report. (Many people struggling with this condition seek medical help, including mental health support, long before applying for a GRC.) Further requirements are official documents proving that applicants changed their name two years prior to applying. Proof of “living in your acquired gender” means submitting only documentary evidence, such as utility bills, payslips or a driving licence showing the new name.
The Gender Recognition Panel conducts a paper based review – it does not question an applicant about their life circumstances and does not assess their appearance. The GRA represents best international practice and works exactly as intended, with 95% of all applications succeeding.
What are the problems?
Removing the medical diagnosis means opening up eligibility from less than 1% of the population who have a medical need, to 100% of Scottish residents aged 16 and over. Anyone can apply, from school children to convicted sex offenders. All checks and balances will be removed and it will have a negative impact on women’s and children’s rights.
The Government has ignored a 2017 ruling by the European Court of Human Rights, which held that requiring a medical diagnosis before issuing a GRC strikes the correct balance between the rights of people who identify as trans and the state’s obligations to the rest of society.
Those obligations include the rights of women to be defined in law with protections and rights as a sex-class, distinct and separate from men – rights that will now be completely undermined.
The Equality and Human Rights Commission has warned of consequences relating to the collection and use of data, participation in sport, measures to address barriers facing women, and practices within the criminal justice system, amongst others.
Men who say they are women have already claimed it is their right to:
- be treated on female hospital wards,
- access women’s refuges,
- join women’s sports teams,
- have sex-specific crimes such as rape recorded as if committed by a woman,
- be housed in female prisons, and
- provide intimate care and counselling to women who would prefer female carers.
These already happen in Scotland and are encouraged by the Government, who, contrary to the Equality Act, recently declared that men can self-identify into women’s and girls’ changing rooms and toilets.
Are any safeguarding measures planned to protect 16 and 17-year olds?
No. The Scottish Government’s proposal ignores the advice from the Children and Young People’s Commissioner Scotland, who warned that this plan conflicts with our modern understanding of the cognitive development of people under 25 – neurological research the Scottish Government otherwise accepts as valid and important, as evident from the recent change in sentencing guidelines for this age group.
There has been a stratospheric increase in child referrals to NHS gender clinics – coinciding with trans organisations pouring materials into schools telling children from nursery age that there is something wrong with their body if they prefer the toys or clothes traditionally associated with the other sex. Bayswater Support Group warned of potential impacts to gender-distressed children by the Government not recognising a connection between the legal and medical process and not considering that lowering the age may compromise outcomes for 16 and 17 year olds, undermining therapy and parental responsibilities. Evidence shows the majority of children will become comfortable with their body as they mature and providing legal affirmation before this point is irresponsible.
The impact of bringing legislation designed for adults into our schools and the effect it will have on other children has not been considered.
What about detransitioners?
The Government maintain that the self-declaration form signed by applicants represents a lifelong commitment sufficient to deter any fraudulent applications and has therefore decided to ignore the evidence provided by the growing number of detransitioners about being rushed into social and medical transitions without due consideration of their backgrounds and other mental health issues. These brave young men and women requested a pathway to revoking a GRC without having to incriminate themselves but this has been denied.
Won’t this result in a bad law waiting to be abused?
Yes. The Gender Recognition Reform Bill suggests that a person’s legal sex ought to be changed based on unfalsifiable, wholly subjective innermost feelings. Although the proposal mentions punishing a false declaration, there is no mechanism by which we can prove that someone’s self-declaration is false. Removing the medical diagnosis, a gatekeeping and safeguarding measure, and legislating on the grounds of personal preferences for stereotypes associated with the other sex (such as girls who like football or boys who like pink) is an irresponsible, sexist proposal. There is no justification for this, and no explanation why people who have no need to change their sex in law should be allowed to do so.
Since self-identification laws have been abused by predatory males and other criminals and fraudsters in every country that has adopted them to the detriment of women and children, it is astonishing that the Scottish Government continues to claim that there’s no downside to this proposal.