The Scottish Children’s and Young Person’s Commissioner submitted to the recent Scottish consultation on Gender Recognition outlining the clear legal reasons why transgender children cannot be omitted from a route to Gender Recognition.

The Commissioner’s role is “to protect and safeguard the human rights of children and young people in Scotland, with particular reference to the United Nations Convention on the Rights of the Child (UNCRC)”

The Commissioner provided important context to the consultation

Background of this proposal: It is important to understand what is being proposed by this legislation. This does not impact upon children and young people’s right to affirm their gender identity in day to day life, including in schools. These rights are already enshrined in law via the Equality Act 2010 and many young people in Scotland have transitioned already. Likewise, these proposals do not impact on children’s right to access and consent to medical treatment, which was enshrined in Scots law by the Age of Legal Capacity (Scotland) Act 1991.

The current consultation focuses solely on the legal process through which that transition is formally recognised by the state and it is vitally important to young people who are transgender, non-binary and intersex because of the rights and protections that formal recognition of gender identity affords.

The Commissioner then outlined relevant international legislation:

The UNCRC and gender recognition: The UNCRC does not directly address the issue of legal recognition of gender identity. A number of articles are nonetheless relevant to this consultation. In particular:

• Article 3: This requires that in all matters concerning a child, their best interests shall be a primary consideration.
• Article 6: States parties are obliged to ensure to the maximum extent possible the survival and development of the child.
• Article 8: Outlines children’s right to preserve their identity.
• Article 12: Requires States to provide all children who are capable of forming their own views with the right to express them and for due weight to be given to their views in accordance with their age and maturity.
• Article 16: Provides children with a right to privacy.
• General Comments 12 (on the right of the child to be heard) and 20 (on the Rights of the Child in adolescence) and the concept of developing capacities through which children exercise their rights. Both General Comments elaborate on the concept of the evolving capacities of the children, a concept which is explored in full in the UNICEF Innocenti/Save the Children publication The Evolving Capacities of the Child by Gerritt Landsdown .

Other Human Rights Instruments: The International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) are also relevant to this consultation. Both contain articles providing rights to privacy that are extremely close to those contained within Article 16 of the UNCRC. Article 8 of the ECHR has been successfully used to establish a right to legal recognition of gender through the European Court of Human Rights. As all other human rights instruments apply equally to children and adults, this can be interpreted as providing children of all ages with an equal right to recognition.

The Yogyakarta Principles: Although the Yogyakarta Principles do not have the same status as international law as human rights treaties, they affirm existing human rights in the context of sexual orientation and gender identity. They are an important means through which existing treaties can be interpreting and set an international standard of good practice with regards to LGBT rights. They were agreed by a panel of experts, in 2006. In 2017, 8 Additional Principles were added to the original 29. Of these, Principle 31 is relevant to this consultation. It states: Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to change gendered information in such documents while gendered information is included in them.

While sex or gender continues to be registered: iii. Ensure that no eligibility criteria, such as medical or psychological interventions, a psycho-medical diagnosis, minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be a prerequisite to change one’s name, legal sex or gender;

The Scottish Consultation

The Scottish Consultation asked two specific questions on under 18s:

Question 5 The Scottish Government proposes that people aged 16 and 17 should be able to apply and obtain legal recognition of their acquired gender. Do you agree or disagree?

The Commissioner’s answer was:

AGREE

In 2016, the UN Committee of the Rights of the Child issued General Comment 20 on the implementation of the rights of the child during adolescent. General Comment 20 outlines the way in which adolescents use “increasing levels of agency to take responsibility for their rights” in line with their evolving capacities as outlines in Article 5 of the UNCRC. Whilst this proposal increases the opportunity for transgender children to realise their rights, it is out of step with existing Scots law with regard to the recognition of capacity in children and young people, which more commonly presumes capacity from the age of 12 and provides children below that age the ability to exercise rights where they have capacity. This is discussed further in our answer to question 6. Notwithstanding that, the extension of these rights is particularly important for this group who are at a stage of life when they are transitioning from school to college, work or university; from childhood into adult life. It allows them to make these transitions with the protections that legal recognition of their identity provides them and reduces the potential for accidental outing, for having to explain their transition and from the additional administrative burden that accompanies changing multiple administrative records.

Question 6 (This question asked “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

The Commissioner’s answer:

We support Option 5 (application by capable child). This option is most in line with the Age of Legal Capacity (Scotland) Act 1991 and the Yogyakarta Principles and Article 12 of the UNCRC, as interpreting via General Comments 12 and 20 of the UN Committee on the Rights of the Child. Scots law, in the Age of Legal Capacity (Scotland) Act 1991, has a longstanding presumption that children have the capacity to instruct a solicitor and consent to medical treatment from the age of 12. It is possible for a child under this age to exercise these rights if they have the capacity to understand what is involved in that decision. Young people seeking legal recognition of their gender identity may already have exercised these rights, in other aspects of their transition including change of name and consenting to medical treatment relating to their transition. It would be illogical for parental consent to then be required for legal recognition of a transition the young person has been able to effect without it. Article 2 of the UNCRC states: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind…” Denying transgender, non-binary and intersex children the ability to exercise their right to legal recognition, or making it contingent on parental consent, may constitute a breach of article 2. Likewise, Yogyakarta Principle 31 (C iii) requires that States: Ensure that no eligibity criteria, such as … minimum or maximum age, economic status, health, marital or parental status, or any other third party opinion, shall be a barrier to change one’s name, legal sex or gender. Save for capacity, children and young people should not be subject to different or additional tests than adults. The process must still be self-declaratory. We are aware that Ireland has introduced a process for under 18s that differs significantly from that for people 18 and over. We would be very concerned if this was the approach taken in Scotland. Any test of capacity should be consistent with those in section 2(A) and 2(4A) of the Age of Legal Capacity (Scotland) Act 1991. We have consistently expressed out concern with the test of capacity associated with the extension of right contained within the Education (Scotland) Act 201612. Implementing addition tests for children with additional support needs is a breach of article 2 of the UNCRC and we believe potentially indirect discrimination under the Equality Act 2010. The same would be true were any addition test of capacity be used in relation to transgender, non-binary and intersex children through the proposed legislation. Were application for a gender recognition for 12-15 year olds to be subject to parental consent, it is essential that provision be made to enable children with capacity to exercise their rights in cases where: • a young person’s views differ from those of their parents, • where parents are in disagreement with each other; • where the young person is looked after • where there is no one with parental rights and responsibilities. The operation of such a process must be subject to additional consultation, including work with transgender, non-binary and intersex young people. The process should be grounded in children’s rights. We believe that courts are not the appropriate place to decide these matters and children report very mixed experiences of courts listening to their views in other matters.

Other relevant questions:

Question 10 Are any changes to section 22 (prohibition on disclosure of information)?

This is one protection which young people would gain access to with legal recognition of their transition and supports their right to privacy under Article 8 of the ECHR and Article 16 of the UNCRC. It is particularly important at points where information is being transferred from one service provider to another. Education records are covered by section 22 so this would increase the protections to young people’s rights to privacy as they move from school to further education, work or higher education.

Question 12 Should Scotland take action to recognise non-binary people?

YES We support the recognition of non-binary gender identities. Non-binary has become an accepted part of young people’s understanding of gender identities. An increasing number of young people identify as non-binary and should be entitled to the same legal recognition of their transgender peers. Yogyakarta Principle 31 (C ii) requires states to make available “a multiplicity of gender marker options”. This proposal also supports non-binary children’s right to an identity (article 8 of the UNCRC). This proposal also provides the opportunity to ensure that the births of intersex children can be registered promptly without them being assigned as male or female. Article 7 of the UNCRC states that “the child shall be registered immediately after birth”. Together with the extension of legal recognition to children with capacity, this would enable intersex children to assert their identity as they wish, using a social rather than medical model of gender.

International and national law is clearly on the side of the right of trans children to their identity.

This accords with the World Professional Association for Transgender Health’s 2017 Identity Recognition Statement:

The World Professional Association for Transgender Health (WPATH) further recognizes the right of all people to identity documents consistent with their gender identity, including those documents which confer legal gender status. Such documents are essential to the ability of all people to enjoy rights and opportunities equal to those available to others; to access accommodation, education, employment, and health care; to travel; to navigate everyday transactions; and to enjoy safety. Transgender people, regardless of how they identify or appear, should enjoy the gender recognition all persons expect and deserve.

Medical and other barriers to gender recognition for transgender individuals may harm physical and mental health. WPATH opposes all medical requirements that act as barriers to those wishing to change legal sex or gender markers on documents. These include requirements for diagnosis, counseling or therapy, puberty blockers, hormones, any form of surgery (including that which involves sterilization), or any other requirements for any form of clinical treatment or letters from doctors. Further, court and judicial hearings can produce psychological, as well as financial and logistical barriers to legal gender change, and may also violate personal privacy rights or needs.

WPATH advocates that appropriate gender recognition should be available to transgender youth, including those who are under the age of majority.

FYI We reviewed the Scottish consultation and the case for rights for transgender children to gender recognition here https://growinguptransgender.com/2018/01/18/scottish-gender-recognition-for-under-16s/