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13 November 2017updated 09 Sep 2021 6:01pm

Why the Scottish government wants to let you self-declare your gender at 16

Scotland's Equalities secretary on plans for a new law.

By Angela Constance

One of the benefits of devolution has been an ability to defend and promote LGBTI rights. Scotland was the first country in the UK to consult on same sex marriage, and we’ve reformed adoption law to permit same sex couples to adopt jointly.

We also want to do more to ensure that we are creating a fairer Scotland for those who are transgender and non-binary. So I am proud that the Scottish government has opened a consultation on reforming the 2004 Gender Recognition Act to ensure that our legislation is in line with international best practice.

The UK-wide 2004 Act was originally seen as ground-breaking, because it allowed transgender people to apply to the Gender Recognition Panel for legal recognition of the gender in which they lived without undergoing either gender reassignment surgery or other medical treatment. However for those who have gone through the process, it is clear that the requirements placed on applicants are intrusive and onerous. 

We believe applicants should no longer be required to produce medical reports or have lived in their gender for a minimum of two years. These arrangements should be replaced with a self-declaration process, a model successfully in use in other countries, including our near neighbour the Republic of Ireland and Argentina, which pioneered self-declaration systems. Under our proposals, applicants would submit a statutory declaration confirming that they understood the implications and intended to live in their acquired gender for the rest of their lives.

Under these proposals, trans people aged 16 and over would be able to apply for legal gender recognition using the self-declaration process. At the moment, applicants must be 18 and above. But this is out of line with the rights that 16 year olds have in Scotland already, such as to marry or enter a civil partnership, take up full time employment, and vote. I have heard first-hand from trans young people about their distressing experiences of explaining the discrepancy between an identity document such as their passport that shows their sex in accordance with their gender identity, and their birth certificate which they cannot change until they are 18.

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Our proposals have received a warm welcome from leading LGBTI and women’s equality organisations. Scottish Trans Alliance, Equality Network, LGBT Youth Scotland and Stonewall Scotland as well as Close the Gap, Engender, Equate Scotland, Rape Crisis Scotland, Scottish Women’s Aid and Zero Tolerance have all given their support – some of their comments include that these changes will mean an end to intrusive and humiliating processes, reduce red tape and increase privacy and dignity. This assures me that we are taking the right action.

Our full and wide ranging consultation will ensure that with the help of those responding our proposals ensure equality and are in right with current practices elsewhere. We’re also keen to hear respondents’ views on the options for non-binary people who do not identify as male or female and whose gender identity consequently has no recognition at present. 

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The consultation is part of a vital conversation and one which will ensure transgender and non-binary people are treated with dignity, fairness and respect. I hope people with an interest will take part in the consultation process and shape our new processes.

Angela Constance is the Scottish government’s Cabinet Secretary for Communities, Social Security and Equalities.