The Gender Recognition Act, transphobia and Scotland

There’s a huge amount of bureaucracy involved in being transgender in Scotland.

If you are trans, and you want to change your birth certificate to accurately represent your gender, you need a Gender Recognition Certificate. The process for getting one is lengthy, tedious and expensive. Even with assistance from experts, applicants who meet the eligibility criteria regularly fail to satisfy the requirements of the panel which makes the decision, often multiple times. Right to appeal is extremely limited, so most who fail will need to re-apply and pay the fee again. The expense varies, but with GPs and gender identity specialists charging up to £80 for a report, the cost can quickly mount.

At present, trans people can already change their gender on driving licenses, passports, and school and medical records without recourse to a psychiatric assessment. However, under the 2004 Gender Recognition Act, changing your birth certificate requires an applicant to receive a psychiatric diagnosis and to provide a detailed psychiatric report about their life history, current circumstances and identity in order to prove they are the gender they say they are.

As a result, people often don’t bother making the change, which can lead to problems with retirement dates and pensions. Travel insurance can go wrong if a birth certificate and passport have different genders. Weddings or civil partnerships have been cancelled when someone learns the state has them down as the wrong gender.

And so campaigners have called for reform to the Gender Recognition Act to make life easier for trans people. The campaign has three priorities – to introduce legal recognition for people who do not identify as men or women (known as non-binary people) for the first time, to remove the requirement for psychiatric diagnosis for changing a birth certificate (so trans people do not need approval from a gender recognition panel), and to lower the age at which someone can apply for a gender recognition certificate from 18 to 16, and to under 16s who have parental consent for an application.

None of this would have any effect on a trans person’s ability to seek medical help in transitioning gender. As James Morton, manager at the Scottish Trans Alliance (STA) explains: “We’re not calling for any change to the age at which people access different kind of medical treatments, it’s purely about allowing a young person who’s started living in a different gender to not be outed by their birth certificate”.

Morton told Holyrood: “Say if you were at school and you maybe have been living for a year or two as a particular gender, you could change your school records, you could change your medical records, you could change your passport, you could change your bank account, if you had a young savers account, but you wouldn’t be able to change your birth certificate gender.

“It wouldn’t affect the assessment processes at a gender identity clinic for hormone blockers or, once they were 16, perhaps for cross sex hormones. That would be all made on the basis of clinical judgement, what your paperwork says is irrelevant for that.”

STA policy officer Vic Valentine adds: “When we describe the self-declaration process, it still requires people to sign and have witness to statutory declaration [meaning breaking it would amount to perjury], so it’s not as simple as literally just announcing into the void what they identify as and getting a new birth certificate.”

The campaign has broad cross-party backing, with support from the SNP, Scottish Labour, the Scottish Greens and Scottish Lib Dems, and the Scottish Tory manifesto including plans to review the Act. The Scottish Government then launched a consultation on proposed changes in November 2017, with the results expected back this summer, and a change to the law likely to follow by 2021.

Yet, despite political support for the campaign, this is not an easy time to be trans in Scotland, with a recent survey by the Equality Network finding that 80 per cent of trans respondents had been a target of a hate crime. According to the survey, 71 per cent of people who experienced hate crimes did not report the incident to the police.

by Jenni Davidson

Scotland top country in Europe for LGBTI equality

Greg, a 27-year-old trans man, started transitioning when he was 16. Describing the process of changing his birth certificate as “brutal”, he told Holyrood that he very rarely tells people he’s trans. “I try to keep it relatively quiet,” he said.

“Most people in my life don’t actually know. The most recent person to find out, well, I basically got dog’s abuse – that I’m the most disgusting person ever, that transgender isn’t even a real thing, that I shouldn’t be allowed to exist. I’ve been told to kill myself because it’d be better for society. But the same people, when they don’t know, have no issue with me at all.”

Emma is a trans woman in her early 50s, who lost her job when she came out. Having gone through the gender recognition process around ten years ago, she would support any change which would make the system less stigmatising.

“It was quite invasive, and it felt really strange that there was this panel sitting somewhere that got to decide what gender I am, based on some paperwork – they never meet you in person. So the new system [the reforms] feels a lot better, it’s a lot less stigmatising, it takes some of the pathologisation away from it. That’s useful in a lot of senses because it starts off with legislation but that in turn can change social attitudes.”

She added: “Going into groups can be difficult, and going into single-sex spaces, there’s always this fear that you’re going to be challenged if you use the facilities. It can be really difficult, especially if you’re going into a place you haven’t been before. If you want to take up a new hobby or a new sport or whatever, there’s always a thought in the back of your head, wondering, ‘is this going to be easy? Will they be accepting?’ I used to take part in a pottery class, but I had people mis-gendering me… I feel like I am quite assertive and quite articulate and I can help educate people but at the end of the day, I was only there to chill out and do pottery, I’m not there to educate people about trans people. If I choose to go and do education somewhere, that’s my choice, but in my normal day-to-day life, I shouldn’t have to face that.”

Ezra, a 24-year-old non-binary person, sees the proposed reforms as “a vital first step” in improving the treatment of trans people. “What GRA reforms are about, simply, is reducing bureaucracy and making it much easier for people to define themselves, and then be able to seek protection. For example, if there’s no legal recognition of non-binary people then non-binary people lack protection, so I, as a non-binary person, don’t currently legally exist. If something happens to me then I have no protection under the law, the Equality Act doesn’t cover me. Nothing covers me. That’s a problem. It means that if I face transphobia because I am non-binary that’s not a crime, whereas if someone else who might be binary faces transphobia then it is.”

But while trans people may back the reforms, the campaign has brought a backlash – mainly online – from conservative religious groups as well as some parts of the feminist movement. The US has seen a rise in so-called ‘bathroom bills’ – aimed at forcing people to use the toilet which corresponds to the gender on their birth certificate – while closer to home, in the UK, the Women’s Equality Party was recently forced to sack an official spokesperson following reports she had described parents who accept their children as trans as “abusive”. Even Labour was dragged into controversy following attempts to stop the party from including self-identifying trans women on all-women shortlists.

The Christian Institute has also expressed concern, with deputy director Ciarán Kelly telling Holyrood: “The proposed law change removes even the limited safeguards currently in place. Many women in particular are very concerned that this provides an opportunity for men to declare themselves to be women to gain access to female-only spaces such as changing rooms – as has happened in the US.

“With the active promotion of transgenderism in schools, children are being encouraged, even manipulated into doubting their birth sex.”

Behind these concerns lies a belief that men will seek to abuse the right to self-determine gender, allowing them to pretend to be trans and putting vulnerable women at risk.

The debate has been hostile, and littered with misinformation, eventually forcing Rape Crisis Scotland, Scottish Women’s Aid, Zero Tolerance, Engender, Equate Scotland, Close the Gap and the Women 5050 Campaign to come out in public support of the proposed changes in an attempt to end uncertainty. Rape Crisis has long offered support on a self-declaration basis, without demanding access to a birth certificate, meaning the reforms would not have any impact on services.

As Rape Crisis Scotland chief executive Sandy Brindley told Common Space: “I think the most important thing to say is that [the proposed legal changes] should make no difference to the provision of women-only services – that’s where some confusion has arisen. There isn’t any Rape Crisis which would ask to see documentation of gender.”

Mridul Wadhwa, a trans woman, is Rape Crisis Scotland’s Training and Volunteer Coordinator. She rejects any suggestion that frontline workers privately oppose plans to allow self-identification.

She told Holyrood: “It isn’t a frontline issue, despite suggestions. I train volunteers on the helpline, and about 60 per cent of our service is offered by volunteers. All the volunteers are on board, and Rape Crisis Scotland has had a policy of self-declaration much longer than the discussion, longer than I have been at RCS. There isn’t anything which Rape Crisis Scotland does that would be impacted by this.”

She added: “I just can’t see anyone abusing self-declaration. It’s a statutory declaration, and it’s just not going to happen. To be honest, I think the anxiety around that is similar to what I would call false allegations of rape. It’s a non-threat.”

Yet, for Mridul, the reforms are about much more than just cutting red tape. “Trans people have to get letters from a number of sources, they have to live in their gender role, to the satisfaction of other people – people who cannot themselves, in my view, explain what gender means. The bureaucracy is unnecessary, as if we cannot be trusted with our own identities, when everyone else is trusted with theirs. This whole process, as it stands now, is very paternalistic, like ‘we can’t trust you to make your own decisions, so we need other people to confirm it’.

“The whole system is transphobic. It’s a system that, because of the way it is legislated, says, ‘we don’t believe you, you’re not valid, you have to conform to some kind of expectation about what a real woman or a real man is’. No other woman or man has to do that.”

“When was the last time you used your birth certificate? These sorts of documents really come into use in death and divorce – passing on benefits and so on – that’s when it’s crucial. But what if we had a change of government, or a change of society, 40 years from now? Equality is never permanent, it’s fragile and we have to fight for it, and what would stop it happening [a transphobic government coming to power] in Scotland? There’s no evidence it will never happen here. It could. And the first thing they would do is attack fringe minorities, so if your documentation isn’t in the right way, or you want to travel or emigrate, it could be problematic.”

Yet while views vary on the significance of the changes, with trans people faced with a hostile media and the risk of hate crime in the street, it’s clear that more needs to be done to help improve the way society treats those who do not match widespread stereotypes on gender.

Katherine, a trans woman in her 50s, describes a deliberate campaign, driven by right-wing groups, religious conservatives and sections of the feminist movement, to paint trans women as a danger to society.

She said: “Estimates vary but we are probably less than one per cent of the population, and I suspect quite a lot less, so trans people made a very interesting target for them. But there was one problem: there wasn’t really anything that trans people were doing which could stoke up public resentment, and distrust, and outrage, so they had to invent something. In terms of a malicious move, it had a spark of genius to it, which was the idea that trans people somehow equate to sexual predators who want to use access to bathrooms in order to carry out assaults or generally perv on other people. It’s a nonsense.”

Katherine doesn’t see the changes as hugely significant, telling Holyrood that removing the requirement for psychiatric assessment will mean one less humiliating hurdle for trans people, while having little effect on anyone else. In fact, like all of the trans people interviewed, given the long waits facing those seeking support, she identified changes in health provision and education as key to combating transphobia, particularly in light of research from Stonewall suggesting that seven out of ten trans young people have self-harmed, and around a third have attempted suicide.

She told Holyrood: “The issue of trans kids self-harming is just horrific. That’s where the real attention should be. All that stuff about bathroom access and what-not is just rubbish. It’s a lie. It’s nonsense. But there’s a lot of evidence that trans kids have horrific experiences because of social isolation and rejection.”

“It has always been thus. When I was a teenager, I thought long and hard about that [self-harm]. I lived in the countryside. I had told my GP, the first adult I had ever mentioned this to, and her instinct was to say to me, ‘just don’t tell anyone about this. Say nothing. You will just need to deal with it’. I was around 14. Shortly after that, one night, I went and unlocked a shotgun and loaded it and I sat on my bed with the barrel in my mouth and I tried to decide if I really wanted to live or not. It seemed to me to be an entirely reasonable response, because if you can’t be who you are then what is the point in going on. Now clearly I kept going and I tried to live as best I could, but a lot of kids do harm themselves badly and a lot suffer needlessly. There’s no reason we can’t offer them help and support.”

Obviously, these changes will not rid Scotland, or the UK, where Theresa May’s government is considering similar changes, of transphobia. Yet for young trans people, the reforms could represent the first step on a journey towards greater equality. Emily, 19, says she has been deterred from getting a gender recognition certificate under the current system, and would support the changes, but argues that more needs to be done to improve the atmosphere in which trans people live. Alongside the Scottish Trans Alliance, groups such as Trans Parents, which supports parents of young people that have come out as trans, have also helped improve understanding, while Edinburgh recently hosted Scotland’s first Trans Pride event to raise awareness of trans rights. For her part, Emily identifies LGBT Youth Scotland as an important source of support as she was coming out.

She told Holyrood: “I came out in my last year of high school so I didn’t have too much of a backlash from students, it was much more from managerial staff. I had a lot of discussions with staff – they felt like negotiations – over how I was going to come out. There was a lot of talk about bathrooms, obviously, and that’s nothing new but it was pretty disheartening to sit there and think how I was going to validate my own existence to my head teacher. Inclusive education is a really big deal, especially for young people. We need to make sure people are well versed on what LGBT people are and what trans people are, and the need to treat them with respect and dignity, because when they grow up they will be adults and if they keep poor opinions then it will feed a new generation of bigotry.”

She adds: “It was really amazing to see older trans people at Trans Pride – to recognise that there are people out there who are living for a much longer time.

“Being trans, you kind of get this idea that you aren’t going to last that long. I know I’ve definitely thought that I can’t imagine being 40, even, so it was amazing to see that and think ‘trans rights doesn’t just affect young people’, because there are older trans people as well.”