Westminster May Have Given Up On Trans Rights But Scotland Hasn’t

Last week, history was made in Holyrood. The Gender Recognition Reform bill (GRR), an amendment to the 2004 Gender Recognition Act (GRA), passed its first stage in the Scottish parliament. Despite the Scottish Conservatives voting overwhelmingly against it and the Scottish National party (SNP) suffering its biggest rebellion yet, with nine MSPs breaking the whip, it received broad support in Holyrood. For transgender people in Scotland, the bill represents hope.

The GRA was passed by Westminster in the early days of devolution, introducing a formal process for trans people to change their legal gender in the UK. At a time when the forced sterilisation of trans people was the norm across Europe, the GRA was considered progressive. Almost two decades on, it is now widely viewed as out of step with best practice. Chief amongst the complaints is its medicalised view of trans people, – whom it treats as mentally ill and requires doctors to attest to their identity – and a lengthy bureaucratic process that is seen as invasive and dehumanising.

Under the current system, trans people in the UK must submit an application to the gender recognition panel, who decide whether to issue a gender recognition certificate (GRC) to amend their birth certificate. Applicants must provide evidence spread over two years showing that they have been living as their acquired gender, and document what legal and medical steps (such as hormone therapy and surgery) they have undertaken. It also requires two specialists – typically doctors or psychotherapists – to write reports about the applicant, confirming that their transition is likely to be permanent. 

Since 2005, only 6,586 applications for a GRC have been submitted. Government estimates in 2018 indicated there were 200,000-500,000 trans people in the UK (0.3-0.75% of the total population). LGBTQ+ charity Stonewall estimates that trans and non-binary people account for about 1% of the UK’s population. That so few trans people have applied for a GRC reflects an inaccessible process.

The process proposed by the Scottish government is a significant simplification. It would lower the minimum age for applicants from 18 to 16 and reduce the two years required by the GRA down to six months: three before making an application, with a further three required before the GRC is confirmed, known as a “reflection period”. Rather than submitting reams of personal and medical information to the panel to prove they are trans, it would allow applicants to self-identify via statutory declaration to Scotland’s registrar general.

The registrar general oversees registrations of births, deaths, marriages and name-changes; under existing Scots law, any person may change the name on their birth certificate, but not their gender without a GRC.

The Scottish government’s proposed bill makes no changes to the Equality Act 2010, which sets out protections from discrimination on grounds such as sex and gender reassignment. The Equality Act clarified that medical intervention was not a requirement for legal protection for trans people, and a GRC is not required for most aspects of a trans person’s legal and social transition. 

Per the Equality Act, a trans person can change the gender marker on identifying documents such as driving licences, passports and medical records without a GRC, though the passport office requires a medical note. Trans people do not need a GRC to enter public bathrooms and changing facilities associated with their acquired gender, though the Equality Act lays out provisions by which trans people may be excluded from single-sex spaces or sports if it is deemed proportionate.

However, trans people cannot be married in their identified gender without a GRC. HMRC requires a GRC to update its records, so trans people without one are automatically outed to their employer, exposing them to potential discrimination. These represent massive impediments for trans people to participate in everyday life. To supporters of same-sex marriage, this will all sound very familiar. 

Scotland prides itself on its commitment to human rights, ranking first for LGBTQ+ equality in Europe in 2015 and 2016. During the 2016 election, every party represented in the Scottish parliament included GRA reform in their manifestos. The Scottish government held two successive public consultations on the issue, though legislation was delayed by the pandemic. The parties reiterated their commitment to reform in 2021, with the notable exception of the Scottish Conservatives.

Demedicalisation of legal gender recognition had been supported by Theresa May’s government, and a similar consultation process was undertaken in England & Wales in 2018. However, her successors explicitly ruled out a self-ID system, with then-women and equalities Minister Liz Truss stating in 2020 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.” 

Truss did, however, acknowledge that the process should be “kinder and more straightforward”. The government’s answer: the application cost would be reduced from £140 to £5 and the system moved to an online form. With these token gestures, any further reform was effectively abandoned by the UK government. Where Westminster is hell-bent on scrapping human rights, Scotland has stepped up.

The Gender Recognition Reform bill is not perfect but it is a move in the right direction. The UK does not currently legally recognise non-binary genders and this bill does not provide such recognition. This reform process has taken many years; throughout it, the Scottish government has been plagued by accusations from increasingly rightwing factions of the independence movement, such as the Alba party, that GRA reform is a distraction from independence. 

For those on the left, this argument should be immediately suspect. Scottish independence is not an end in itself, but a means to create a better, fairer Scotland. Progressive politics have long suffered in Westminster, but in Scotland they are alive and well. That the Scottish government has stuck to its guns on GRA reform is promising. It is an acknowledgement of the age-old adage that nobody is truly free until everyone is.