Scotland is currently holding a consultation on reforming their Gender Recognition Act. This proposes options to simplify the process for transgender people in Scotland to obtain full legal gender recognition (acquiring a Gender Recognition Certificate and amending their birth certificate).
This consultation seeks views on reforming the 2004 Act. The Scottish Government proposes to streamline the process for obtaining legal recognition and also to allow people aged 16 and over to apply. We are also seeking views about the options for people under 16 and for recognition of non-binary people.
We are inviting responses to this consultation by 5pm on 1 March 2018. 1.07. Please respond to this consultation using the Scottish Government’s consultation platform, Citizen Space. You can view and respond to this consultation online at: https://consult.scotland.gov.uk/family-law/reviewof-the-gender-recognition-act-2004.
The consultation provides key information on the Gender Recognition Act. It is critical to note however that even without a Gender Recognition Certificate, transgender people are legally protected under the 2010 Equality Act and have rights to change identity markers in systems including schools, the NHS and their passports, and have the right to use facilities matching gender identity. The Gender Recognition Act is however the only route to updating a birth certificate.
“GRC” – a gender recognition certificate. Under the 2004 Act, a full GRC provides legal recognition of an applicant’s acquired gender. When a GRC is issued under the 2004 Act, the applicant’s legal sex also changes to male or female. ”
“The 2004 Act allows transgender people aged 18 and over to apply for legal recognition of their acquired gender and to change their legal sex accordingly”
The consultation considers two main models for gender recognition, the current system of an assessment model (where a doctor, psychologist and or court ‘evidences’ a person’s gender identity) or a self-declaration model (as already applied in Norway, Denmark, Malta, Colombia, Argentina, and the Republic of Ireland).
For an example of how this is working in practice, this article provides a useful overview of how a self-declaration based process is already in action in the Republic of Ireland.
I won’t focus here on the proposed options for how the gender recognition system will operate, but will instead give attention to eligibility based on age – namely whether trans youth and trans children are permitted to get a Gender Recognition Certificate and change their birth certificate.
At present in Scotland, as elsewhere in the UK, trans youth and trans children under 18 are not eligible for a Gender Recognition Certificate, meaning under 18s cannot update their birth certificate. Trans children and youth are however given legal protections under the 2010 Equality Act, and already have the right to change their gender marker in almost all other documentation, without the need for a Gender Recognition Certificate (including a right to change their gender marker in their passport, and in systems including schools and the NHS) (*as with adults options for identity recognition for trans youth/children with non-binary identities are extremely limited).
The consultation questions:
The survey starts with 4 questions for how GRC should work for adults including:
Question 1 The Scottish Government proposes to bring forward legislation to introduce a self-declaratory system for legal gender recognition instead. Do you agree or disagree with this proposal?
16-17 year olds.
The consultation proceeds to focus on 16-17 year olds:
“The Scottish Government considers that people aged 16 or older should be able to apply for legal recognition of their acquired gender using the proposed self-declaration process.
4.05. There is clear evidence that people aged 16 do live full time in their acquired gender and want this to be legally recognised. For example, the Women and Equalities Select Committee heard evidence from LGBT Youth Scotland to this effect. In the Republic of Ireland, 8 people aged 16 and 17 have received a GRC31 after obtaining a court order permitting them to apply under their self-declaration system. The court in the Republic of Ireland is required to consider evidence about the young person’s transition to their acquired gender. ”
Question 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?
It is curious that the report notes the “clear evidence that people aged 16 do live full time in their acquired gender and want this to be legally recognised” and yet in subsequent sections does not similarly note the existence of transgender children under the age of 16. Parents of transgender children, and other groups supporting transgender young people were perhaps overlooked in the preparatory consultations? This oversight makes it especially important that parents and supporters of transgender children and young people provide feedback during this consultation that transgender children do indeed exist, and those under the age of 16 both want and need full legal recognition. Inputs from any under transgender young people themselves might also be an important addition to this consultation.
The consultation moves on to consider under 16s:
“4.08. The Scottish Government’s view is that there is a careful balance to be struck in relation to people under 16. On the one hand, we should treat children with dignity and respect, giving weight to their views and wishes in line with their individual capacity. On the other hand, we should ensure that children have the right protection and care. 4.09. People who are under 16 years of age can act on their own behalf in relation to a range of matters. Annex E contains further information about this. The CRWIA at Annex M refers to research evidence about children who identify as transgender. 4.10. The Scottish Government considers that there are five broad options in relation to people under 16 being able to apply for legal gender recognition.”
The consultation proceeds to outline 5 potential options for transgender children under the age of 16. I’ve quoted these here in full, following which I’ve outlined my thoughts on each option:
Under 16s – option 1 – nothing for those under 16
4.11. Under this option, applicants would have to be at least 16 to apply for legal recognition of their acquired gender. This would be straightforward, but would stop those under 16 with a clear view of their gender identity from obtaining legal gender recognition.
Under 16s – option 2 – court process
4.12. Option 2 would be for Scotland to adopt a court based process.
4.14. Any court based process, whether instigated by a child’s parents or by the child themself, would focus on the assessment of the child’s welfare. We would also consider specifying the matters the court would have to have regard to in determining what was in the child’s best interests. 4.15. Under this option, a court action could be raised by the child if they had sufficient capacity to do so, or if they did not, by a person or persons who had PRRs (parental responsibilities and rights) for them acting on their behalf.
4.19. Malta has a court based process of legal gender recognition for those under 18. Those with parental authority for a child may file an application in the court. The court must consider the best interests of the child and give due weight to the views of the child depending on their age and maturity
4.20. In the Republic of Ireland, applications cannot be made by those aged under 16. However, applications by 16 and 17 year olds require to be accompanied by a court order permitting the application to be made. The court may only grant the order if the child’s parents, surviving parent or guardian consents. Two medical certificates must also be produced to the court. The medical certificates must confirm that: · the child has a sufficient degree of maturity to decide to apply for gender recognition; · the child is aware of, has considered and fully understands, the consequences of that decision; · the child’s decision is freely and independently made; and · the child has transitioned, or is transitioning to, their preferred gender.
4.21. Under option 2, a child who may not have reached puberty might apply to the court or a person with PRRs for such a child might apply.
Under 16s – option 3 – parental application
4.22. Option 3 would be to permit an application to be made on behalf of a person under 16 by someone with PRRs (parental responsibilities and rights) for them. Typically, this would be the child’s parents. Further information about PRRs, when parents get them and who else may have PRRs is in Annex F. 4.23. Usually, where more than one person has parental rights in relation to a child, each can exercise their rights without the consent of the other or any of the others.36 4.24. Where a person with PRRs is reaching a major decision regarding the fulfilling or exercise of PRRs, the person is under a duty to have regard to any views the child expresses, taking account of the child’s age and maturity. The person making the decision must also have regard to any views expressed by any other person with PRRs for the child concerned.37 The Scottish Government considers that seeking legal recognition in an acquired gender is an example of a major decision. 4.25. One possibility under this option would be to require the application to be made by all parents with PRRs for a child. This would mean that a person who had PRRs for the child but was not their parent would not require to be involved. However, we would still expect the person(s) applying on the child’s behalf to have regard to the views of such a person. 4.26. Another possibility under this option would be to require all people with PRRs to apply, not just a parent or parents with PRRs. This may mean that a local authority that had PRRs for a child would need to be involved in the application process. 4.27. If all the people who required to be involved in the application did not agree38, then a court order could be sought under existing arrangements. Section 11(1) of the Children (Scotland) Act 1995 allows the Sheriff Court or the Court of Session to make an order in relation to PRRs. The court could then make a decision based on the child’s welfare. 4.28. There are some children for whom no one has PRRs. One option might be for a person who has an interest to obtain PRRs from the court and then apply for legal gender recognition on behalf of the child.
4.30. In summary, therefore, under this option all parents with PRRs (or, perhaps, everybody with PRRs) would have to apply, having had regard to the child’s views. If there is a dispute amongst those with PRRs, an application could be made to the court to resolve the matter. There may be restrictions on the role of a person with limited PRRs. 4.31. Under this option, applications could be made on behalf of very young children, including both those who lack legal capacity and who have not reached puberty.
Under 16s – option 4 – minimum age of 12
4.32. Option 4 would permit children aged 12 and above to apply in the same way as those aged 16 or above
4.34. However, this option would take no account of a child’s capacity to take decisions nor their physical maturity.
4.36. The Scottish Government does not favour this option as it would allow a child to apply irrespective of their capacity to understand the nature and consequences of their decision.
Under 16s – option 5 – application by capable child
4.37. Option 5 would permit a person under 16 to apply in the same manner as an adult, provided they had capacity to understand the consequences of recognition in their acquired gender.
4.38. Under this option, someone would have to test the child’s capacity. This could potentially be done, for example, by a registered medical practitioner, or by a practising solicitor.
4.40. A person under 16 has legal capacity to instruct a solicitor, in connection with any civil matter, where the person has a general understanding of what it means to do so. Someone aged 12 or more is presumed to be old and mature enough to have such understanding.
The section ends with question number 6, which asks consultation respondents to state which of the 5 potential options for transgender children under 16 they most favour.
Which of the identified options for children under 16 do you most favour? Please select only one answer.
option 1 – nothing for those under 16
option 2 – court process
option 3 – parental application
option 4 – minimum age of 12
option 5 – application by capable child
My response to the consultation
My initial thoughts to the above is as follows:
Option 1 – nothing for under 16s, is unacceptable. Many of our trans children are living as their identified gender from primary school, including changing their gender marker in other systems including on their passport. Why then should they have to wait until 16 to have who they are fully recognised in law? When they have been living for years with a passport and other markers in their gender identity, why should their birth certificate be out of sync? Inability to update birth certificate adds to stress for trans children that their identity will be unwillingly disclosed and presents to them the reality that the state does not fully respect them until adulthood. Trans children exist, and waiting until 16 or 18 for proper legal recognition is denial of basic rights for these young citizens.
Denying rights to under 16s is at odds with the recent WPATH (World Professional Association for Transgender Health) statement on identity:
“WPATH advocates that appropriate gender recognition should be available to transgender youth, including those who are under the age of majority,”
Option 2 – court process seems like an expensive, bureaucratic, stressful and unneccessary requirement. I would like to learn more from Ireland, who has a similar requirement for 16-17 year olds which is currently under review. Australia, which has just got rid of a requirement for trans youth to go to court for hormone treatment, provides a useful case study of this process.
CASE STUDY: Australian experience of a court based process
Australia until very recently required under 16s to go to court to gain approval for gender related medical care. Families and transgender children in Australia found the process of going to court stressful and upsetting. When one family were told that the requirement to go to court was being removed, one family reportedly “were unable to contain their tears of relief” with their child commenting “No longer will young transgender young people have to keep justifying who they were“.
World leading specialist in supporting transgender children, Dr Telfer, Director of the Gender Service at the Royal Children’s Hospital in Melbourne described the amount of time gender specialists were having to devote to guiding families through the court proceedings:
“Gender Clinic staff have had to spend considerable time on counselling families on what the court process would be like, Dr Telfer said.
“No-one wants to be in a courtroom. Usually it’s a place where you go when something is wrong.
The requirement for transgender youth to go to court was described as “costly, traumatic and unnecessary”.
The director of legal advocacy at the Human Rights Law Centre, Anna Brown, described the decision to stop forcing transgender children in Australia to go to court as a “stunning victory” for young transgender people.
“This will make a profound difference to the lives of many young trans people who will now be relieved of the burden of a costly and unnecessary court process”
“This bizarre legal anomaly was born of outdated attitudes to trans young people”
“Importantly, also, for the young people themselves, going to court can be hugely taxing,”
“This decision is a huge victory for so many young people and their families. The latest research shows that there are probably around 45,000 trans and gender-diverse young people in Australia, and this will save them enormous amounts of money, time and heartache.”
Australia has made the decision to move away from requiring transgender children to go to court. Why then would Scotland wish to impose this on Scottish trans children? Based upon the Australian experience, the Option 2 court process, is not the right decision for our children.
Option 3 – parental application seems instinctively a sensible option. With parental approval children like my daughter could get their identities fully legally recognised. This would however limit options for youth who do not have parental support, and such youth would either need to wait until 16 or would need to have recourse to an alternative option eg to the court option. I wonder whether there are many youth without any parental support for whom gaining a GRC pre 16 would be a major priority? I’d welcome feedback from trans youth or organisations working with trans youth.
Option 4 – minimum age of 12 is largely ruled out by the Scottish consultation, and I would agree that basing declaration on age, rather than capacity for decision-making, would be unworkable.
Option 5 – application by capable child is attractive in theory but I question how it would work in practice. It would require an administration layer including professional gate keepers, requiring our children to submit to an assessment, and I wonder who would be willing to test a child’s capacity for this purpose. This might result in a very small number of medicalised gate-keepers and subject to waiting lists, delays and arbitrary protocols. There’s also a very serious question about how to ensure such professional are able to assess a child’s capacity in a sensitive and appropriate manner – those of us with trans children are well aware of the level of transphobia and ignorance about trans children so common across the UK.
Seeking another opinion
I decided to reach out to the Scottish Trans Alliance who provided their view on the options for under 16s
Scottish Trans Alliance:
“We’re currently in favour of Option 3 – the ‘parental application‘ option – where under 16s would be allowed to change gender on birth certificate on submission of a simple statutory declaration with signed parental consent. This would mirror how name changes on official documents are already done for under 16s.
We think that if a young trans person under 16 has unsupportive parents then the most urgent problems they will be facing are likely to be whether they are safe from transphobic emotional abuse at home and whether they are able to wear clothes they want and use the verbal pronouns they want. We think that it is rare that a child under 16 with unsupportive parents will be in a confident and safe enough position to risk trying to change their birth certificate against the wishes of their parents.
We think that nearly all under 16s who have been able to successfully start living fully in their gender identity (and therefore are at the point where it would make sense to change their birth certificate to improve their privacy) will have at least one supportive parent. However, it is important that there is a way of ensuring that an unsupportive parent is not able to block the wishes of the young person and their supportive parent. If a court process is needed to resolve a family dispute about whether a young person should be granted a GRC, then we think the court ought to be obliged to uphold the wishes of the young person provided they have capacity to understand the consequences of legal gender recognition.
While Option 5 – the ‘application by capable child’ option – sounds on the surface like a more empowering option than parental application, we have concerns that it may lead to problematic gatekeeping by doctors/solicitors who could be scared to approve the capacity of individual trans young people. It could result in say a 13 year old with supportive parents having to try to prove their capacity to a trans-ignorant doctor only to be told they are too young to understand the consequences and that they have to wait as their parent can’t give consent on their behalf. That could be a very stressful and disempowering experience.
Not allowing under 16s to change the gender on their birth certificate leaves them at risk of schools not taking their gender identity and right to privacy of their gender history seriously. Under 16s usually don’t have bank accounts or many letters sent to them so proving their identity without showing a birth certificate is harder for under 16s than for trans adults. This means trans people under 16 are at greater risk than adults of privacy violation, and transphobic harassment as a result, due to their birth certificate outing them as trans. The intensity of media hostility and resulting negative social attitudes towards trans youth and their families makes privacy rights particularly essential.
Changing birth certificate would have no impact on ability to access hormone blockers but could make a life enhancing difference to moving to a new school without being outed.
It’s worth noting that parents of trans young people under 16 can already change their child’s gender on their passport and medical records so it makes sense to bring birth certificates into alignment with these other official documents.”
Having reviewed the proposed options, and consulted with other stakeholders, the best option for under 16s seems to be Option 3 – parental application.
Flawed research evidence underpinning the consultation
Before concluding, I would also like to share my views on the annexes to the consultation which contain some worryingly flawed ‘evidence’ that if accepted as presented could seriously undermine trans children’s rights.
The Scottish consultation document presents ‘research evidence’ on transgender children in annex M part 4.
ANNEX M: PARTIAL CHILD RIGHTS AND WELLBEING IMPACT ASSESSMENT
- What research evidence is available?
4.1 There is evidence that children can experience incongruence between their assigned gender and their gender identity early in life. One study indicates the average age was 8.
4.2 There is a limited evidence base about whether children will continue to experience these feelings in the longer term. Follow-up studies indicate overall that for 85.2% of the children, their distress discontinued either before or early in puberty. 8 However, the rates in the individual studies varied widely. For instance, a 2008 study indicated that in 39% of children the feelings did continue beyond the onset of puberty9 whereas older studies from before 2000 had very much lower rates for children continuing to experience distress after the onset of puberty. It is thought that pre-2000 studies have included children who would not now be considered to be experiencing gender dysphoria. The studies may also be affected by the small clinical population of children with gender dysphoria – studies looking at whether gender dysphoric feelings persisted had a total population of 317 people.
Part 4.2 in particular misrepresents the current body of evidence and is danger of undermining the Scottish consultation through establishing a prejudicial approach to children gaining legal recognition.
It refers to two deeply flawed studies:
- Ristori, J and Steensma T.D “Gender dysphoria in childhood” in International Review of Psychiatry, Gender dysphoria and gender incongruence, Vol 28, 2016 Issue 1.
- Wallien and Cohen-Kettenis “Psychosexual outcome of gender-dysphoric children” Journal of the American Academy of Child and Adolescent Psychiatry, 47, 1413–1423
We have previously addressed and demonstrated the lack of credibility of these exact studies here.
Conversely, new evidence, that has not been presented in the consultation Annex, suggests a very significantly higher rate of transgender children continuing to identify as transgender as adults and has been reviewed by us here.
4.3 There is also evidence that the more extreme a child’s gender dysphoria was before puberty, the less likely it was that their feelings will recede with the onset of puberty. For those who have reached puberty and continue to experience distress, evidence indicates that their distress then tends to intensify and that depression or self-harming behaviours are also more common in ages 12 and over. It is understood that physical changes caused by puberty may intensify the levels of distress experienced.
4.4 Available evidence suggests that factors arising around the ages of 10 to 13 may help explain changes in how a child feels about their gender: · the changes in social roles between boys and girls as their gender role become more distinct; · the anticipation or experience of physical changes as a result of puberty; and · their first experience of experiencing falling in love and discovering their sexual identity.
4.5. Evidence indicates that there is a difference of experience between boys and girls. 13 Although more boys are referred to gender identity clinics, some studies suggest that gender dysphoria is more prominent in girls.
Part 4.4 relies on one specific flawed study that absolutely does not evidence the claim presented here.
“Steensma T.D et al (2011) “Desisting and persisting gender dysphoria after childhood; A qualitative follow up study” Clinical Child Psychology and Psychiatry Vol16 issue 4”
There is no evidence in this single referenced study that a transgender child changes identity between the ages of 10 and 13 as misrepresented here. This is grossly misleading and risks undermining support for trans children in Scotland gaining legal recognition. We have previously discussed the flaws of this specific paper in some detail here.
4.6 There is evidence that transgender young people are more than twice as likely as non-trans people to be diagnosed with depression (50.6% compared to 20.6%14) and with anxiety (26.7% compared to 10%). There is evidence that this most likely arises due to their experience of discrimination, lack of acceptance, and the abuse they may face and is not an inherent feature of their being transgender. 15 There is also evidence that transition to living in their preferred gender and being supported with gender confirming medical interventions may help improve mental health, in many cases reaching levels experienced in the general population.
It is clear that discrimination and lack of acceptance is damaging to trans youth. The government has a responsibility to tackle this, including through enabling trans children like my daughter to gain full legal recognition. Not allowing full legal recognition to children also sends out a damaging signal to those children and to wider society that transgender children are not worthy of respect or rights.
4.7 Scottish Government officials met members of LGBT Youth Scotland groups aged 13 and over. Their view was that legal gender recognition must be made available to people younger than 16. A person should be able to transition and live in their acquired gender before they have to take their qualifications or go to university. They felt that this would better support their rights not to be discriminated against, for example, at school. A high proportion expressed the desire for their parents (or other people with responsibility for them) to be involved and supporting them through the recognition process.
4.8 LGBT Youth Scotland gave evidence to the Women and Equality Select Committee inquiry into Transgender Equality which setting out the views of transgender people aged under 1817 about the benefits of legal gender recognition in terms of reducing discrimination and improving their mental health.
There is a concerted effort in the UK, as elsewhere, to deny transgender people basic human rights. This campaign is particularly targeting transgender children, the most vulnerable of transgender people, and those with the least power and voice. It is critical that this consultation focuses on listening to transgender children and to those families who support them. Trans children are a small and very marginalised group, and their voices must not get lost in the wider consultation. It is not acceptable to tell transgender children that they have to wait until they are adults before they can be recognised in law.
Appendix A TRANSGENDER CHILDREN – EVIDENCE OF NUMBERS EXPERIENCING GENDER DYSPHORIA OR DISCOMFORT WITH THEIR ASSIGNED GENDER
Appendix A presents a confused view of the difference between transgender children, and children who are gender non-conforming. It alarmingly includes reference to studies from the discredited Zucker, and makes multiple references to “opposite sex behaviour”. It is worrying that a public consultation on gender recognition should have included such a muddled understanding.
Transgender children are one of the most marginalised, voiceless and powerless groups in society. I encourage all who care for transgender children to complete this consultation, and for question 6 I recommend selecting Option C – parental application.
Additionally, in the accompanying comments box for the consultation it would be useful to mention some basic facts:
a) transgender children exist
b) transgender children have legal rights and need legal recognition
c) transgender children face enough challenges, discrimination and hostility already – legal recognition should not be an additional burden for them
The consultation documents mention the “clear evidence that people aged 16 do live full time in their acquired gender and want this to be legally recognised” and yet are silent on on the existence of transgender children or their desire and need for full legal recognition under the age of 16 year.
This right, if enabled, would not be pursued by every transgender child. Parents would not take this option on a whim. This option would be most appropriate for transgender children who have already been living in their identified gender for many years, who likely already have all other identity documents including their passport updated to their identified gender. To deny these children full legal recognition until 16 is a gross betrayal of their rights.
Yet transgender children are one of the least powerful and most marginalised groups in our society. We know that transphobic groups are actively campaigning against the provision of rights to transgender children. The needs and the voices of transgender children may not be heard in this consultation.
It is vital that families of transgender children feed in to this consultation, including those outside of Scotland, making it clear that transgender children do indeed exist and do deserve full legal recognition. Inputs from transgender adults and allies who care for transgender children will also be critical, as supportive families of transgender children are already overwhelmed with the barriers we have to overcome to enable our children to get the rights and the protections that other children take for granted.
Input from any transgender children and young people who are willing to share their thoughts and words would be especially valuable, perhaps explaining what an updated birth certificate would mean to them, or how they feel about being denied the right to full legal recognition.
The consultation can be completed here. It closes on March 1st 2018
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