Responding to the Gender Recognition Act Consultation
The Scottish Government is asking for your opinion on how gender is dealt with legally in Scotland. The consultation is open until March 1st. Any individual or organisation can respond: you don’t have to be trans, or an expert. You just have to care. The two major things reform to the Gender Recognition Act (GRA) can do would be to make trans people’s lives easier through simplifying the process of having their gender recognised, and to create a new legal category for those of us who don’t fit into M or F (non-binary, for short).
There is a real chance of improving our lives, and we really need your help. Because while it looks like trans people’s lot is improving — there are sitcoms, and magazine covers, and groups at schools — increased visibility comes with increased danger. Transphobic violence is increasing, and there is also an organised and active campaign to oppose changes to the GRA. So I’m asking for help. Please help. Below is a guide following my own responses to the consultation, which you can find here: https://consult.gov.scot/family-law/review-of-the-gender-recognition-act-2004/ Before that, though, I want to say something about the broader political situation.
Having legal recognition for non-binary people would ease the humiliation of being talked about as the wrong gender in all legal documents, which in turn would make it easier for us to demand to be recognised by all the other parts of society: job, schools, families, friends. The psychological relief of that, at a time when trans people are struggling with endemic mental ill health, is hard to under-estimate.
Basing gender recognition in self-declaration starts the process of taking coercive psychiatry out of our lives. Rather than recognition being based in supposed experts diagnosing you with a supposed disorder, and a whole load of arbitrary bureaucratic hoops besides, it would base recognition in your own expertise about your life. It says that you have bodily autonomy. Again, this eases the mental burden, but it also goes further: by centreing the principle of bodily autonomy rather than psychiatric “expertise”, it cracks a little further open the doors to healthcare and support. It offers the chance of greater control over the medications, therapies, surgeries and support systems we need. This is a principle that should be centred in all healthcare for all people.
But all that said — and those are big and important things to say — reform to the GRA will not end transphobia, or transphobic violence, or the oppressive system which creates gendered violence. It will not end cissexism, misogyny, heterosexism: patriarchy. In fact, reform to the GRA is rooted in precisely the same politics that creates patriarchy and other systems of the state.
By centreing demands on legal recognition, we’re centreing two forms of conservative politics: law and visibility. Asking to be seen is asking the powerful to tell you you’re OK, rather than to take your own self-worth. It asks the media to validate you, the government to regulate you, the non-profit industry to support you. Rather than making this our core demand, we need to be building up our own systems of power, supporting each other directly, and taking what’s already ours: not just self-worth, but money, food, shelter. I grew up on a tiny island, so I know how powerful it is (or would have been) to see people like me on my screens, but nothing can replace forging those connections between us. Moreover still, the law is a system of power which demands divisions between people based on sex, class, education, race, nationality, dis/ability, gender, psychology, and many other divisions besides, and it will always be that. Asking institutions to allocate resources and rights — rather than creating our own equality — is again to give away our own power, and to undermine our solidarity.
One example of what I mean by this is in the consultation, where it records as a concern and obstacle to the legal recognition of non-binary people that “the Scottish Prison Service has estimated that the cost of a new small prison unit for 20–30 people might be between £8.7 million and £10.7 million.” That is, one of the first things the government thinks about when it thinks about recognising us is “but how will we lock you up?” Rather than questioning why we have prisons, or why trans and gender-nonconforming people are incarcerated at higher rates, or how prisons are a way of criminalising and maintaining poverty, or how prisons are central to the project of creating a sexgender caste system in the first place, or how enforcing gender norms is central to the project of incarceration (for more on all this, see Captive Genders: https://captivegenders.net/), the government is worried it will have to pay to build another prison. Of course it is. Government is prison.
Tied to this is the approach to campaigning adopted by our own non-profit organisations. This approach is basically, “Trans people are nice, we’re just like you, we’re normal, we’re no threat, and this reform is just a teeny-weeny change that makes our lives easier and doesn’t threaten anything else”. What I’m saying is that, if this is true, “not threatening anything else” is exactly the problem. Our society is based on class divisions, on exploitation: our economic and political system demands the creation and maintenance of poverty, and poverty has always been racialised, gendered, disabled, made mad. Saying “we’re just like you” denies the history of how we’ve been made: we were made different because society needed difference to create poverty, needed to make a class of people who deserved less. If we’re to make a better society, we need to embrace that difference and build power with it, not pretend to be normal. Allowing some few of our number to become normal (but never quite normal enough, right?) and thus rich is not a political change: in fact, it strengthens the system that impoverishes the rest of us even more.
None of this is to say the GRA doesn’t need reforming, or that reform will not improve our lives. I know it’s going to improve my life, because I’m white, have a middle-class background and a university-level education, and so am thus well-positioned to take the further privileges offered to me. I also know that if that reform isn’t accompanied by grassroots power built by and between trans people — power that centres the impoverished, the racialised, the disabled, the migrant, the mad — then the machines of state and capital will continue to grind us up into gold.
So please respond to this consultation to support trans people’s rights, whoever you are. But if you’re trans, find your trans friends and build your power together. Take what’s yours. Destroy what destroys you. If you’re not trans, identify the ways in which you are impoverished and then build solidarity with your class. If you have money, give your money not to leaders and non-profits but to grassroots organisations (like Action for Trans Health): http://actionfortranshealth.org.uk/. And if you want to see a radical picture of what trans healthcare, politics and life can look like, read this manifesto: https://edinburghath.tumblr.com/post/163521055802/trans-health-manifesto
My GRA Consultation Responses
Respond to the consultation here: https://consult.gov.scot/family-law/review-of-the-gender-recognition-act-2004/
You can copy/paste my responses, but it’s better if you reword them as your own, and especially if you include your own stories as a trans person or what your trans friends have told you.
I also won’t submit this for another two weeks, so I’d welcome feedback from those who share my outlook but have more arguments to strengthen it.
1. The initial view of Scottish Government is that applicants for legal gender recognition should no longer need to produce medical evidence or evidence that they have lived in their acquired gender for a defined period. The Scottish Government proposes to bring forward legislation to introduce a self-declaratory system for legal gender recognition instead.
As the consultation notes, the self-declaration system is international best practice. This is because it removes unnecessary and expensive bureaucratic obstacles to trans people’s gender recognition. These burdens are time-consuming and come with legal and healthcare costs for all parties, and they also have a deleterious effect on trans people’s mental health. By requiring trans people to submit themselves to psychiatric and legal examination, you would be contributing to the mental health crisis facing trans people (e.g. https://www.scottishtrans.org/trans_mh_study/) by putting them through painful and shaming systems of control.
Self-declaration also enshrines an important principle of law and healthcare: bodily autonomy. By saying that trans people have autonomy over their legal recognition, you would encourage a system of centreing trans people’s autonomy in their healthcare: that is, rather than putting our legal status and healthcare in the hands of self-defined experts, you would be saying that trans people are the experts about their own bodies. This is one step towards improving our healthcare, which is sorely lacking (see e.g. https://www.stonewall.org.uk/sites/default/files/lgbtinbritain-trans.pdf).
Finally, you suggest introducing fees for gender recognition. This would be wrong, as it would be imposing legal costs on a population already facing very high rates of poverty (see same reports).
I am writing all these responses as a trans non-binary person. This legislation has a direct and immediate effect on my life. When I talk about the mental health impacts of failures of legal recognition, I am talking about my own mental health: not being legally recognised, and being forced in my daily life to be referred to by the wrong gender, is humiliating and degrading, and contributes to the acute depression and anxiety which I have suffered throughout my life. Being required to jump through legal hoops in order to simply be legally recognised has the same effect. Lacking legal recognition of non-binary identities has also made it a great deal harder for me to access appropriate healthcare, as the non-binary trans experience is poorly understood and often not even recognised by the healthcare system. It means I cannot properly access the medications, therapies and surgeries that I need in any timely and patient-centred way. This leads to ongoing degradation of my physical and mental health. This is compounded by the imposition of a complex legal process between me and appropriate healthcare. Thus, when I am writing in favour of trans bodily autonomy over recognition and healthcare, I am asking the Scottish Government to ease the financial, legal and mental burden on my life, and enable me to access the care that would enable my flourishing as a human being.
2. Should applicants to the proposed gender recognition system in Scotland have to provide a statutory declaration confirming they know what they are doing and intend to live in their acquired gender until death?
As you have noted in your report, “research into countries using self-declaration systems of legal gender recognition has not identified evidence of false or frivolous statements being made by applicants”. This would thus be a situation of creating a solution to a problem that does not exist, which seems like a daft thing to spend money on. Worse, it’s creating a punishable offence for a criminal act which does not exist, which risks unnecessarily criminalising a population that already faces unjustly high rates of criminalisation in a prison system which excessively punishes them and fails in their healthcare (see e.g. http://www.lag.org.uk/magazine/2016/11/transgender-issues-in-the-criminal-justice-system.aspx). Moreover, anyone using false gender recognition to break a law — which, as you have noted, does not happen — would already be criminalised under that law, so criminalising false gender recognition is gain unnecessary.
Finally, it is worth saying that legally enshrining the fear of “false or frivolous declaration”, which as you have said does not happen, legitimises many prejudices trans people face — that they are just making it up, that they are trying to trick their way into the other gender’s spaces and lives, and so on — which again is a risk to the health and wellbeing of trans people.
3. Should there be a limit on the number of times a person can get legal gender recognition?
The only rationale you give for this is “that applications might be submitted frivolously”, but as you have already noted there is no evidence of this ever happening, so again it is creating a solution for a problem that does not exist.
Moreover, as many trans people can attest, gender identity can change over time, and the healthcare and support required can change over time. There should be no unnecessary obstacle to gaining that recognition and care.
4. If the Scottish Government takes forward legislation to adopt a self-declaration system for legal gender recognition, should this arrangement be open:
If someone is accessing services while in Scotland, including and especially when those services are gendered, then they should obviously be able to access them in the same way as everyone else, regardless of nationality or migration status. Preventing people who are not born or normally resident in Scotland but who are accessing Scottish services from accessing gender-appropriate services would be cruel and discriminatory. It would force trans people to be seen as the wrong gender by service providers, which has a major health impact.
5. The Scottish Government proposes that people aged 16 and 17 should be able to apply for and obtain legal recognition of their acquired gender. Do you agree or disagree?
Scotland recognises 16 and 17 year olds as having full legal capacity in the majority of areas, so not to extend this to trans people would be highly discriminatory. Moreover, saying that someone can decide to have sex and get married but that they can’t know what gender they are is obviously absurd, if not downright prejudicial.
Adolescence is also a crucial time for trans healthcare, with major physical and emotional changes occurring, and so ensuring that 16 and 17 year olds have bodily autonomy in seeking their healthcare is crucial, as it is in issues of sexual and reproductive health.
6. Which of the identified options for children under 16 do you most favour?
MINIMUM AGE OF 12
As the consultation notes, in Scotland “a person of 12 and over is presumed to be of sufficient age and maturity to be capable of instructing a solicitor on their own behalf”. If they are capable of instructing a solicitor in relation to parental responsibilities and rights, it follows that they should also be capable in relation to gender recognition even where there is a disagreement with parents. Centreing the child’s needs in keeping with Article 3 of the UNCRC should also pertain to gender recognition.
Similarly, we enable access to sexual and reproductive healthcare, including abortions, to under-16s without parental consent, recognising that bodily autonomy and access to care takes priority over parental consent in those areas. This should apply to other areas of gendered healthcare, such as gender recognition; anything less is again legally prejudicial against trans people.
In an abusive situation, where parents are causing direct harm to their children, requiring parental consent would mean that gender identity could be used as a weapon of abuse: that is, parents could withdraw consent as a way to cause harm and perpetuate abuse. There should be no such risk to trans children.
(NB: this question requires only one answer, so I had to choose between this and “applications by capable children”, which applies a test of legal capability rather than declaring capability by age. Both options seem imperfect: the central principle for me is trans bodily autonomy, and keeping the law out of trans people’s bodies, so I went for the minimum wage as the one which subjected trans people to the least legal interference.)
7. Should it be possible to apply for and obtain legal gender recognition without any need for spousal consent?
As the consultation notes, a requirement for spousal consent “may give a transgender person’s spouse inappropriate power to determine the transgender person’s access to their legal rights.” We do not expect spouses to give consent in any other area of rights or healthcare, so there is no reason to expect it in the area of gender recognition, rights and healthcare. As with parental abuse, enabling spousal consent would also create an additional vector of potential spousal abuse. To require spousal consent would also be a retrograde step in Scotland, as we have already decided that spousal consent was not required during the passage of equal marriage legislation.
Moreover, we should remove the “interim Gender Recognition Certificate” process, as this creates an unnecessary hierarchy between trans people, and unnecessary bureaucratic and costly intervention in trans people’s lives.
8. Civil partnership is only available to same sex couples. This means that the civil partners cannot remain in their civil partnership if one of them wishes to obtain a full Gender Recognition Certificate.
Should they instead be allowed to remain in their civil partnership? This would mean that a woman and a man would be in the civil partnership.
To require a trans person to choose between their gender and their partnership would be cruel and unnecessary. It would also, again, create unnecessary legal and administrative costs for all parties. Instead, we should simply institute legal equality between genders and sexualities in the matter of civil partnerships by making them available to everyone regardless of the gender of the partners.
Reform to civil partnership legislation would also be required by non-binary legal recognition, which would make “same sex” and “opposite sex” distinctions between partnership and marriage legally incoherent, as well as discriminatory to non-binary people.
9. Should legal gender recognition stop being a ground of divorce or dissolution?
If one partner wants to end a marriage or partnership, there has been an irretrievable breakdown regardless of whatever has happened in terms of gender recognition: there is no legal need for extra grounds. Retaining gender reassignment as grounds for divorce would continue to stigmatise gender reassignment as something which is aberrant an harmful to others, with the resultant affirmation of social prejudice and deleterious effect on trans mental health discussed above.
10. Are any changes to section 22 (prohibition on disclosure of information) necessary?
As the UK Parliament’s Women and Equality Committee Transgender Equality Report (https://publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/39002.htm) noted, the current interpretation of section 22 has allowed for the extensive misuse of disclosure in court, resulting in the prejudicial bullying of trans people in the court system. As GIRES said, “Trans people are frequently “outed” in court situations to create, deliberately, a negative view of them, whether their trans history is relevant or no”. Moreover, there have been no prosecutions under this prohibition even though disclosure has been misused, indicating that the law does not protect trans people enough.
Therefore, a strengthening of terms is needed in Section 22 to prevent the harmful disclosure of trans status in court. The cases where trans status is relevant to legal proceedings should be exceedingly rare if not non-existent, as being trans should be taken to have no legal impact on legal capacity, reputation, social status and so on. As noted above, the criminalisation of trans people and their treatment in the justice system is of grave concern, and Section 22 prohibiting disclosure must be reformed to strengthen the protection of their personal information.
11. Should a person who has been recognised in their acquired gender under the law of another jurisdiction be automatically recognised in Scotland without having to make an application?
If someone is accessing services while in Scotland, including and especially when those services are gendered, then they should obviously be able to access them in the same way as everyone else, regardless of nationality or migration status. Preventing migrants to Scotland from being able to access gender-appropriate services would be cruel and discriminatory. It would force trans people to be seen as the wrong gender by service providers, which has a major health impact.
12. Should Scotland take action to recognise non-binary people?
The wealth of historical, geographical and medical evidence that non-binary people exist is incontrovertible (http://equalrecognition.scot/non-binary/). I am one of them. I exist, and the law does not recognise me. Aside from the simple pain of that sentence, the lack of recognition has many impacts on my daily life and daily health. Being forced in my daily life to be referred to by the wrong gender, is humiliating and degrading, and contributes to the acute depression and anxiety which I have suffered throughout my life. Being required to jump through legal hoops in order to simply be legally recognised has the same effect. Lacking legal recognition of non-binary identities has also made it a great deal harder for me to access appropriate healthcare, as the non-binary trans experience is poorly understood and often not even recognised by the healthcare system. It means I cannot properly access the medications, therapies and surgeries that I need in any timely and patient-centred way. This leads to ongoing degradation of my physical and mental health. This is compounded by the imposition of a complex legal process between me and appropriate healthcare. Thus, when I am writing in favour of trans bodily autonomy over recognition and healthcare, I am asking the Scottish Government to ease the financial, legal and mental burden on my life, and enable me to access the care that would enable my flourishing as a human being.
13. If you answered Yes to Question 12, which of the identified options to give recognition to non-binary people do you support? You can select more than one option.
Option 1: Changes to administrative forms
Option 3: Limited document changes
Option 4: Full recognition using proposed self-declaration system
Option 6: Amendment of the Equality Act 2010
Regarding Option 1: There is no point creating a legal non-binary category if you do not use it, and more specifically if I am required to continue identifying myself as the wrong gender even when that gender legally exists then many of the mental health benefits of legal recognition are lost.
Regarding Option 2: It is never a good idea for a government to maintain a list of names of people from minority groups, for obvious reasons. Please never ever do this.
Regarding Option 3: There is no point creating a legal non-binary category if you do not use it, and more specifically if I am required to continue identifying myself as the wrong gender even when that gender legally exists then many of the mental health benefits of legal recognition are lost.
Regarding Options 4, 5 and 6: If we’re going to do this, then please can we do it properly. If we agree that non-binary people exist and are suffering from a lack of legal recognition, there should be no delay in the easing of that suffering and discrimination. More practically, while I recognise the expense and legal difficulty of creating a new legal category, that expense is made greater, not lesser, by an incremental approach: it creates a longer period of uncertainty, a longer period of expensive consultation and bureaucracy. An incremental approach would give employers and services the space to continue discriminating, would create uncertainty for non-binary trans people regarding their rights, would give people excuses for not providing the services that are legally required. The longer the delay lasts, the more layers of confusion and division are created. What we need is one clear and simple principle, made as firm in law as the Scottish Government is able under its powers, which is then implemented.
14 to 16
These questions ask for further comment and evidence on specific areas. I haven’t researched these specific areas and don’t have further comment to make, and I’m unlikely to have further time, but I welcome comments that people would like to make.
Respond to the consultation here: https://consult.gov.scot/family-law/review-of-the-gender-recognition-act-2004/
If you got this far, thank you.
First Published 13/2/18. Revisions will be noted below.