Gender Recognition Reform – Committee evidence from trans organisations

Representatives from three trans lobby groups: Scottish Trans Alliance, LGBT Youth Scotland and Stonewall Scotland gave oral evidence to the Parliament Committee charged with scrutinising the Gender Recognition Reform (Scotland) Bill on 17th May 2022. We’ve responded (in purple italics) to some of the comments made in each of their opening statements:

Vic Valentine (Manager, Scottish Trans Alliance)

When the Gender Recognition Act 2004 was passed, it was considered to be a world-leading piece of legislation because it did not require trans people to be sterilised before we could be recognised as who we are.

Fortunately, a lot has changed in the nearly 20 years since that law was passed, and the law that we have in Scotland now lies far behind international best practice. The key reasons for that include the fact that trans people are still required to submit a psychiatric diagnosis before they can obtain legal gender recognition. In 2019, the World Health Organization removed gender identity disorder from the mental health chapter of the “International Classification of Diseases 11th Revision”, or ICD-11; the fact that we still have such a requirement here is intensely pathologising and stigmatising. Trans people are not, in and of ourselves, people with mental illnesses; our identities are not mental illnesses so it is not fair that we need to provide a psychiatric diagnosis to be recognised as who we are.

An early mention for “international best practice”, second sentence in. Not bad! For the record, Scotland is already fully compliant with international human rights law which holds that requiring a medical diagnosis before issuing a Gender Recognition Certificate (GRC) strikes the correct balance between the rights of people who identify as trans and the state’s obligations to the rest of society. The case law which led to the Gender Recognition Act (GRA) was about pension and marriage rights, nothing to do with sterilisation.

Gender dysphoria is listed as a psychiatric condition in the DSM-5 although the ICD-11 moved the diagnosis to the “conditions related to sexual health” section. Still a diagnosable condition and one that Scottish Trans Alliance accepts is required to access NHS funded gender treatment. Mental health conditions should not be seen as stigmatising but if Scottish Trans Alliance genuinely think trans, as defined by gender dysphoria/incongruence, is not a treatable medical condition why has the NHS just been given £9 million to improve the service?

Our process is also far behind international best practice, in that we are, before we can be legally recognised, required to provide intrusive and detailed medical reports about choices that we have made about our bodies. Despite the fact that there are no particular medical treatments that we need to have undergone, we still have to send details about the choices that we have made about our lives to a panel of doctors and judges for scrutiny.

Across the world, we are seeing a move, underpinned by international human rights standards, towards recognising trans people on the basis of self-determination. In many ways, the bill’s provisions are to be welcomed, in that they would see Scotland moving towards that much better international best practice in the area. However, the provisions are not perfect; Scotland would not be world leading if the bill as drafted were to come into effect.

According to Wikipedia just 17 out of the 195 countries in the world have laws based on self-declaration of sex; it is certainly not the standard. And Scotland would not be world leading in women’s rights if the bill is passed into law.

There are a number of key reasons for my saying that. For a start, the bill’s provisions contain no proposals to recognise non-binary people—trans people who do not see themselves as men or women—and they also do not recognise trans people under the age of 16, which would mean that children and young people would still not be able to have identity documents that reflect who they are and how they live their lives.

Sorry, but we’re just going to sigh every time non-binary people are mentioned. Everyone has a sex, you may not be happy with it and want to try and transition to the opposite sex, but we all have a sex.
And children are still developing: evidence shows it is a transient identity for the vast majority and will resolve once fully passed through puberty.
Identity documents do not reflect how we live our lives. My driving licence cares not a jot if I like long walks in the countryside or if I am training to be an architect.

We began to consult on reform of the 2004 act way back in 2017, so it has been a long journey to get to where we are today. I am really pleased to be here with the committee. I look forward to answering your questions and hope that we can work together to ensure that Scotland has a law that is fit for purpose for 2022.

Dr Mhairi Crawford (CEO, LGBT Youth Scotland)

Thank you. First, I say for the record that I am very happy for my name to be pronounced “Mari”, but normally it is pronounced “Vari”. I will answer to both.

Thank you for inviting me to the meeting to support the process of scrutinising the bill to reform the 2004 act. That the bill is before the Scottish Parliament is a huge step forward, but I will add that trans young people have made it clear that it neither goes far enough nor, as Vic Valentine has outlined, makes Scotland a policy leader in the area.

Members will already be aware of the bill’s history, the length of time since the first bill was passed in 2004 and the length of time since it was proposed that that legislation be updated. However, my focus lies not on that but on the impact of the delay on young people, and the actions that Parliament can take to help to improve their lives, as we move forward.

From our research report “Life in Scotland for LGBTI Young People”, which was published last month, we know that the average age for coming out as trans is 15. That means that a 15-year-old who came out in 2017 when work started on the bill would be about 20 now. It is likely that during that time they have been unable to apply for a GRC because of their age, and subsequently, because of the requirement for a psychiatric diagnosis, just as Vic Valentine outlined. That is because of the time and cost of obtaining the diagnosis and the burden of collecting evidence that they are living in their acquired gender. They also know that they risk rejection from an unknown panel, without recourse to appeal.

We suspect we’re going to hear a lot about LGBT Youth’s own survey, conducted via their own networks, with mainly their own members. It doesn’t mean much, after all, 99% of our newsletter subscribers agree with us too.
And even with a long waiting list for the Sandyford clinic it really doesn’t take 5 years to get a GRC – waiting times will fall now that staff are back in position after being redeployed during the pandemic and the tackling of the issue with the recent increase in funding.
What’s this about a burden? – proof of living in acquired gender only consists of showing a document that was changed 2 years ago. GRC applications are actually one of the most successful legal processes, with 95% of applicants obtaining a certificate – for the few that are turned down re-applications can be made after 6 months.

During those five years, that young person might have had to apply for a driving licence or a passport, to set up their first adult bank account or to apply for college, university or a job—all with identification documents that do not align with their gender identity. The GRC is the only document that they cannot obtain from the age of 16. Please—just take a second to think about how it might feel knowing that you might be outed because your paperwork does not match, or because the gender that you are presenting as does not match your documentation.

A GRC is not needed to apply for a driving licence or passport – these are already issued on the basis of self-id of sex.
Perhaps the answer is not falsifying
any documents.
Is it all about how you look then? What about a man with long hair and make up who is not trans, is it a problem if he does not change documentation?

We know that discrimination is not allowed in the workplace, but we regularly hear from young people who have lost opportunities or had them delayed when an employer has found out that they are trans. I have recently heard from young people whom I am working with about investigations for fraud by, for example, the Student Loans Company, because their birth certificate does not match the rest of their identification, even though they disclosed their identity when first making an application. There have also been delays in, for example, completing right-to-work checks; that is accepted as normal. I challenge whether that is acceptable.

Legal recourse for employment discrimination based on gender reassignment is already available to deal with such issues.
Student Loan applications do not appear to need a birth certificate, identity is checked via National Insurance number (which does not record sex). The only documentary evidence to be submitted relates to household income.

During the consultation, we have engaged with lots of young people; 97 per cent of them welcomed the minimum age being lowered from 18 to 16 to bring it into line with other rights that are accessible at age 16 in Scots law. That was also supported by two thirds of respondents in the 2018 consultation, and 56 per cent in the 2020 consultation.

I suspect the engagement is not with young people in general but only with those who identify as trans, and then only the ones who engage with LGBT Youth. 99% of our subscribers surveyed don’t think the age should be reduced, but a non-representative poll is not adequate evidence for Parliament to base legislation on. And the Government consultation is not a poll – it is supposed to be an opportunity to raise issues that legislators may not have considered, and need to address. If you want a proper independent and representative poll (the same one Stonewall Scotland later refers to) then the majority of Scots, 53%, oppose lowering the age, and only 31% support the idea.

For young people specifically, that would validate them. One commented:

“I think it would lower depression rates—it would give that certainty, that validation”,

and another said that

“At 16, I was certain, articulate, and capable in my knowledge of my gender and my rights.”

Yes, we were all certain about everything at 16. Especially about insisting a legal document that was introduced to allow access to pensions is a vehicle for validation.

We are also concerned that individuals who might not support the measure conflate the legal process for obtaining a GRC with medical transition, so I encourage the committee to review feedback and evidence with a critical eye. Colin Macfarlane will talk more about that shortly. I am nearly done—I promise.

We note your first attempt to discredit those who are critical of the Bill, but legal and medical transitions do rather go hand-in-hand and you yourself go on to talk about it quite a lot in this session. The EU case law and GRA Act only came about due to a need to change the law to reflect medical treatments that were already being practised so there has always been a strong connection, see the AP, Garcon and Nicot cases.

Young people also feel really strongly that there is no justification that warrants applicants being required to live in their acquired gender for three months before applying for a GRC, and for the three-month reflection period. Indeed, both—especially the reflection period—are detrimental to people who are at the end of their lives, and could result in individuals not having their true gender reflected on their death certificate. Many of our young people feel that the requirement misunderstands the experience of being trans, and they note that gender identity is an individual journey. In their own voices, they say that trans people have already undergone a period of deep reflection before even telling other people that they are trans. In general, telling people that they are trans is an early step, and applying for a GRC is often the last step, if they even apply at all. It is also inconsistent with other statutory declarations.

There are notice periods for all sorts of things, 29 days before marriage for example. Is the argument really for immediate GRCs just in case we die waiting? Heaven help them if they need to apply for residency in a country which can take upwards of six years.
If you want the Bill to reflect being trans perhaps it would help to define what trans is and then have this definition included in the Bill. At the moment the Bill is for 100% of the population, it’s not just for trans people at all – and neither the original Act nor this Bill are about the unscientific theory of gender identity or individual journeys.

The provisions in the bill are an important step forward, but they do not go far enough. More than 80 per cent of our consultation respondents felt that there should be an option for young people under the age of 16, and one person noted that dysphoria does not wait until the person is 16. In addition, 96 per cent of respondents were in favour of non-binary recognition, and non-binary respondents reported feeling let down by the Scottish Government on this.

More dodgy stats. And give it up on the nebulous non-binary – this Bill is hard enough as it is.

I ask the committee to consider those matters carefully, because they present us with opportunities to make the bill world leading. Progressing the bill cannot come soon enough for trans young people, because it will help them to live the best life that they can live.

World-leading, but not in a good way.

I am aware that the committee heard, a couple of weeks ago, directly from young trans people about their lived experience. I am sure that you will agree that their stories are very powerful and must be central to the decision-making. The young people whom we are working with on gender recognition reform just want you to listen to trans people, and for it to be acknowledged how difficult and draining the process is for trans individuals. You have the power to improve the lives of young trans people for the better, and to give them a better start in life. Being a young trans person in Scotland could be really joyful, but it can be really difficult, so I am looking forward to your questions and to supporting you in progressing the bill.

A secret meeting that’s not listed on the Committee website, really?, do tell us more.
Why should teenagers’, or indeed anyone’s, experience be more central to decision-making than evidence?

Colin Macfarlane (Director, Stonewall Scotland)

Thank you, convener. I thank the committee for the opportunity to give evidence today. I would like to align Stonewall Scotland with the comments that my colleagues Vic Valentine and Mhairi Crawford have made.

I am really pleased to be here today and to see, at last, the bill to reform the Gender Recognition Act 2004 beginning its important process of detailed parliamentary scrutiny. It has been a long time coming. As colleagues have said, it is now six years since the Scottish Government stated its intention to reform the GRA and to bring Scotland into line with international best practice. In that time, we have seen an ever-growing number of countries move to a system of self-declaration, with Switzerland being the latest country to have done so.

Over the past six years, we have also seen two major public consultations with more than 34,000 responses. The committee launched its own call for views, which closed yesterday. It is not a fib to say that the bill is probably the most consulted-on piece of public policy in the history of the Scottish Parliament.

Possibly most consulted on, but definitely least consultation responses actually read, and absolutely the worst at actually addressing any of the issues flagged up.

There has also been much public discourse about the bill. Sadly, a significant amount of that discourse—much of it in large sections of our media, but also online and on social media—has been full of misinformation about the proposed changes. In particular, it has said that reform of the GRA will lead to detriment in the rights of others. That is not true.

We’re disappointed. He forgot to say “moral panic”!

Concerns have continually been raised about misunderstandings and misinformation about what reform will mean, so it is important to clarify that GRA reform does not affect access to single-sex services and facilities; that GRA reform does not affect the Equality Act 2010 gender reassignment protections and exemptions; that GRA reform will not affect sports competitions; that GRA reform will not affect any national health service clinical decision making; and crucially, that GRA reform will not permit anyone to flip-flop legal genders across different situations or days. The self-declaration process will be a statutory declaration of a person’s intention to live permanently in their gender identity, and the bill will introduce significant criminal sanctions for making a false declaration.

Behold, an authority on the law is here to contradict the Equality and Human Rights Commission. Interesting that Stonewall (and Scottish Trans) now consider there to be no interaction between the two Acts when only a few years ago they were lobbying the UK Government to amend the single-sex exceptions in the Equality Act because of perceived discrimination to trans people.

It is important to note that, along with misinformation about the bill, much of the public discourse about trans people has happened without trans people being in the room or at the table. Trans people tell us that a significant amount of the reporting and discussions present trans people as a problem that needs to be solved. There has, unfortunately, been a whipping up of moral panic, and othering of trans people in the public discourse.

Oh, spoke too soon. There’s the moral panic.
Women’s groups are not invited to your meetings, we’ve asked to attend and been turned down. Trans representatives didn’t attend our meetings in Parliament (unless you count that time when someone turned up thinking Meghan Markle was going to be there, not Meghan Murphy). We’ve asked for roundtable meetings as far back as 2018 and been denied.
Yet lots of important meetings have happened in Parliament on the development of the Bill without women’s groups being present and we only learned about them via Freedom of Information requests. We met with the Cabinet Secretary only after the Government was shamed into it by a media story on the FOIs. And have you already forgotten that roomful of trans people in the secret meeting with the Committee that we’ve just found out about?

Trans people are not an ideology; they are our friends, our family and our colleagues. They are human beings who want to go about their daily lives. It is really important that the committee remembers that point, as it begins its vital scrutiny of the bill.

It’s really important the Committee remembers the Bill doesn’t mention trans people at all.

It is also important to point out that the majority of the public support trans equality and the proposed changes. The latest poll, which was published by BBC Scotland in February this year, showed that 57 per cent of people overall supported simplifying the process of obtaining a gender recognition certificate, with women being 63 per cent in favour.

This is disingenuous. We all support simplification where possible but the poll referred to did not clarify what this meant when asking the question. When the specifics of the proposals made in this Bill were explained in other questions in the same poll, public support dropped considerably. For example, 44% of Scots rejected the idea of dropping the time requirement from 2 years to 3 months, while 37% supported it.

There are concerns. We recognise those concerns, but we hope that, as it takes evidence from people who support the bill and people who do not support it, the committee will base its considerations on fact, evidence and truth. With that in mind, we hope that as the bill progresses, fact, evidence and truth will allay the concerns that some people have about the bill. We look forward to working with the committee to progress the bill, and I look forward to taking your questions today.

Oh, Colin, you’ve never recognised any concerns. But yep, fact, evidence and truth would be most welcome.

We won’t go through the rest of the witness’s comments in detail (these can be read here) but all-in-all it was an exercise in restating their known position with very little in the way of probing questions. No definitions for key terms and no recognition by either the witnesses or the Committee that this Bill is for everyone, not just those people who identify as trans. Despite regular examples in the media and the fact there is a higher percentage of sex offenders in prison who claim to be trans than there is in the male estate, Scottish Trans Alliance still claim there is no evidence whatsoever of any bad-faith actors, and this was unchallenged by the Committee.

“International best practice” was mentioned an eye-rolling number of times with no understanding of what it actually means since Scotland is already fully compliant with EU and international human rights law, but if it means matching the highest ranking country on ILGA’s rainbow map then we say it’s a very poor goal indeed given Malta’s widespread failings on women’s rights.

One final thought: For an organisation that deals with children from age 13 there is a worrying lack of understanding of child development from LGBT Youth, who seem to think children are just the same as adults, and only those with additional support needs may require help with applying for a GRC and to understand the lifelong consequences. The law however, does recognise the developing cognitive capacities of children and the important roles and responsibilities both the state and parents have in child protection and safeguarding their well-being.

The NHS treatment of gender-distressed children is very likely to undergo sweeping changes in the next year or so once the full Cass Review is published. Already the interim report has rung alarm bells over lack of evidence for medical treatment and cautioned that “social transitioning” is not a neutral medical treatment. Again, it is extremely concerning that LGBT Youth seem to think young children socially transitioning is to be celebrated and affirmed. It is not, it causes significant psychological effects and the Committee would be wise to heed Dr Cass’s advice on the dangers of foreclosing options by affirming trans identities in children.