Make Good Legislation: Gender Recognition Act Reform

If you weren’t aware; the Scottish Government’s consultation on GRA reform ends on 17th March.

Anyone in Scotland – indeed, anyone in the UK (or anywhere in the world) can respond. More weight will be given to the responses of people living inside Scotland, but anyone can give their views.

The last two or three years have been a growing wave of anti-trans feeling which has been made “respectable” to the general public by articles and comments by women perceived as speaking as part of mainstream UK feminism when they attack trans women.

They are not speaking as feminists at all when they attack women for being trans: they are just coming out with a rigamarole of nonsense and lies, which I strongly believe is inspired by the US Christian Right promoting anti-trans campaigning.

  • Supporting women who are trans is feminism: nothing more, nothing less.
  • Disregarding men who are trans and insisting that they are “really” women is sexism and homophobia: nothng more, nothing less.

Here are my five answers to the Scottish Government’s five questions. If you decide to respond to the consultation yourself, I am entirely happy for you to make use of my responses in any way that you feel best supports GRA reform.

My answers may seem repetitive in places – that’s because the answers to each question are processed with that question, not consecutively for each person responding. So the Scottish Government will look at all the answers to question one, then to question two, and so on. You can also find information at Stonewall Scotland and at the Scottish Transgender Alliance websites, as well as Engender and Sisters Scotland.

Question One

The purpose of a Gender Recognition Certificate is to change your birth certificate to your correct name and gender. As I don’t need to do this, changes to the process by which a person applies for a GRC don’t affect me at all, any more than they affect any other cisgender people.

A birth certificate is an important legal document, but it is not used very often in a person’s lifetime. I have used mine to apply for my first passport, to prove my legal right to work in the UK, and to get married: after I die, my family and friends will use my birth certificate to register my death.

I can see the value of having a formal legal process by which a person applies to change their birth certificate. But the three-month waiting period seems wildly arbitrary – it’s over three times longer even than the waiting period to get married or to register a civil partnership, and marriage/civil partnership is a serious legal process which always affects at least two people, and can affect more, whereas applying for a GRC is an individual decision which only affects that person.

There can be no possible reason to have this period be any longer than the 29 days a person has to wait to get married, and as with the notice period for marriage, a person should be able to request an urgent GRC if they have reasons to need one – in case of serious illness, for example.

If the issue is that getting a GRC to change your birth certificate would allow a rapid name-change which might allow people to commit fraud, the solution would seem to be that anyone who has already legally changed their name by application to the change of name service provided by the National Records of Scotland, should be able to apply for a GRC immediately, without waiting: I can see no reason to justify any delay if a person’s legal name has already been changed.

Note: anyone born in Scotland or whose birth is registered here, can apply to have the name – given name and/or surname – on their birth certificate changed, by paying a fee of £40 and filling out a form. Parents can apply on behalf of children under sixteen: anyone over sixteen can apply to change the name on their birth certificate themselves.

Question Two:

The idea of having a “period of reflection” to follow after the waiting period, is really absurd. We do not require this of people who intend to get married, and marriage is a formal legal decision affecting at least two people and possibly more, whereas a trans person’s application for a GRC is a formal legal decision affecting only the trans person applying.

A trans person’s original birth certificate may bear an incorrect name and certainly has the incorrect gender. A trans person may naturally wish to have a correct birth certificate, though most people don’t use their birth certificate very often. This is an important legal change and not to be done lightly, but it is actively insulting to trans people to suppose that, having made the decision to get a GRC and amend their birth certificate, a decision which affects only that trans person and no other person at all, they should then have to wait any time at all to “reflect” on their decision. What precisely are they supposed to be “reflecting” about – that their birth certificate will from then on show the gender they use in their every day life? Pretty sure they know that, that’s why they apply!

I am cisgendered, and the process by which a trans person applies for a GRC doesn’t affect me at all, but I note and object to the arbitrary insult of this “period of reflection” when an adult makes this kind of decision for themselves. This requirement should be removed from the legislation completely.

Question Three

In Scotland, at 16, a person can get married, vote, join the military, get a full-time job, become an apprentice, sign a legal contract, apply for their own passport. It would be absurd to argue that a person who is deemed old enough in law to work for a living, to consent to medical treatment, to vote, to go abroad alone, to join the military, is nonetheless not considered old enough to change their birth certificate to the name they use in day-to-day life and the gender they identify as. This kind of age-discrimination recalls the bad old days where a man under 21 was not deemed old enough to consent to having sex with another man. Sometimes this kind of age discrimination is not just absurd and arbitary, but indicative of a patronising kind of bigotry. I believe this applies here.

But, while this is a matter of principle, there are also practical reasons why a minor aged 16 or 17 must be able to apply for a GRC. For instance, one practical use of a birth certificate is to prove your legal right to work in the UK, if you don’t have a recent P60 from a previous job: a teenager applying for a first job won’t have a P60 at all, and so will likely need to use their birth certificate. It would be foolish and dangerous to say that they must use a birth certificate which outs them as trans to their employer.

If there is felt to be an issue that a 16-year-old might change their minds about transitioning and decide to de-transition, the obvious solution is to ensure that everyone can apply for a GRC more than once in their lifetime, just as anyone can apply for a name change at any time.

Question Four

There has been a lot of misinformation and outright lies about what reforming the Gender Recognition Certificate application process would mean. Some of it springs from ignorance and confusion: some from real hate of trans people.

This is good legislation. I am cisgender, I don’t need to apply for a GRC, my cisgender wife doesn’t need to apply for a GRC: it doesn’t affect me personally at all. But it clearly provides for a need felt by trans people, to be able to change their birth certificate to reflect their proper name and their gender. No one but the person applying for the birth certificate will be affected.

I hope that the Scottish Government will ignore the malice and hateful lies: I think the best way to enlighten those confused enough to think this legislation will harm them in some way is to pass the legislation. Very soon, it should become evident that there is no effect but on people applying for GRCs.

The same nightmarish evocation of disaster was pushed by much the same people in opposition to the freedom to marry for same-sex couples, to repealing Section 28: they were wrong, and those who believed them realised, once the legislation had been enacted and the nightmarish consequences had not come to pass, that they had been a little foolish to believe them. We none of us like to be taken for fools, but we get over it.

I am disappointed that the Scottish Government has not chosen to include non-binary people in this legislation. Non-binary people exist in Scotland and this choice to exclude them simply means that at another time, in another year, the Scottish Government will have to go through all this again, doubtless with the same people pushing their malicious lies about the same nightmarish “consequences”.

Question Five

The only thing this legislation impacts on is the ability of trans people to apply to change their birth certificates. This legislation doesn’t impact on any one else.

A birth certificate is an important legal document, and it should be correct and accurate: a person has a right to have their papers in good order if they need them for applying for a first passport, for a first job, to get married, and for their families to register their death correctly at the end of their life.

A trans person’s access to medical and social support for their transition is a separate issue from what their birth certificate says: medical/social transition shouldn’t be linked to application for a GRC, which a trans person may do at any point in their transition.

But a birth certificate isn’t a document people use day to day in everyday life. The silly stories people have been saying about how reforming the GRC application process will mean free access to women-only spaces such as toilets, changing-rooms, and shelters, are nonsensical: no woman has to show her birth certificate to use a public toilet or a changing-room, no crisis shelter demands a birth certificate before allowing a woman access.

The Equality Act allows for services which need to make exemptions, to make them: the tales told about prisons by people who are more familiar with Prisoner Cell Block H or Orange Is the New Black, than with the real work done by the Scottish Prison Service to individually assess each trans prisoner – of whom there are not many in the prison system, ever – to decide where that prisoner will be placed with regard to their own safety and that of other prisoners.

There has been a ramped-up fear about straight cisgender men using a simplified GRC process fraudulently for access to women’s space to facilitate predatory behaviour. This is intrinsically unlikely – a changed birth certificate would simply not be that useful to a predatory man – but even if some deluded and predatory men did decide to fraudulently apply for a GRC because they were under the impression this would mean they could simply walk into women-only space at will, this would not be a reason to deny trans people the benefits of the reformed process; it would be grossly unjust to deny a basic right to even one person because of criminal behaviour by an unrelated person, let alone to sweepingly decide that trans people cannot have this right because cis men might fraudulently misuse it.

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Filed under Human Rights, Scottish Politics

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