Fears raised over Green manifesto call to remove sex and gender from birth certificates

SCOTTISH Green plans to scrap the recording of sex and gender on birth certificates could see women “cease to exist as a legal category,” one of the world’s foremost human rights experts has warned.

Robert Wintemute, a professor of human rights law at Kings College London, said he was surprised by the party’s pledge to enshrine all of the Yogyakarta principles into Scottish law. 

Scots policy experts MurrayBlackburnMackenzie warned that it could “remove the ability to challenge sex discrimination” and “remove the ability to recognise sex in jobs involving providing counselling or intimate care, in services such as single sex hospital wards, and in activities such as sports.”

In their manifesto, published on Wednesday, the party pledged to “ensure LGBT+ inclusion in Scottish Government international development policies, and enshrining the Yogyakarta human rights principles into Scots law.”

That includes principle 31 which calls for everyone to have “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.” 

It adds: “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.”

To enable this, governments who sign up to the principles would be required to “end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licences, and as part of their legal personality”.

Wintemute was one of the original drafters of the first set of principles back in 2006. These were added to in 2017 with further principles. 

The legal expert has since distanced himself from the document which is often held up as international best practice. 

The academic said women’s rights were not considered during the discussions. He said a key factor in his change of opinion “has been listening to women.” 

He told Holyrood that Scottish law would already comply with almost all of the Yogyakarta Principles. The legal expert suggested the Greens had signed up to the promise without reading the call to stop recording sex or gender at birth 

He said: “When I read Principle 31, I couldn't believe it. I thought it was so over the top.”

“The Yogyakarta Principles, which are not legally binding, are often described as ‘international best practice’.  This is true on the whole.  But the Principles are not infallible. The Scottish Green Party seems to have added the Principles to their manifesto without actually reading Principle 31.”

He added: “One thing I should point out is that the Principles also address LGB human rights, and that most of the content of the 38 Principles is not controversial in the UK. 

“Scottish law already complies with almost all of the Principles. But I don't think the Scottish Green Party really mean that they’re planning to remove sex from birth certificates.  Have they consulted women about Principle 31?”

Asked about the consequences of not recording sex or gender on a birth certificate, Wintemute replied: “Potentially, it means that women would cease to exist as a legal category.” 

Lucy Hunter Blackburn, of the MurrayBlackburnMackenzie independent policy analysis collective, said such a move could be have huge implications. 

She said: "The principle appears at first sight to be about removing sex markers from identity documents, but in fact is about obtaining a more fundamental change that would eliminate all recognition of sex in policy and law. 

“In practice this would remove the ability to challenge sex discrimination, or to operate safeguards on the basis of sex. It would remove the ability to recognise sex in jobs involving providing counselling or intimate care, in services such as single sex hospital wards, and in activities such as sports.

“There may be scope for a more limited discussion about whether sex markers are sometimes included on documents where they add no value. 

“However we doubt very much that the proposals in the Yogyakarta Principles, which do not have any official standing in international law and have not been adopted in any treaty, would command wider public support if properly and directly explained."

In 2019, Tasmania made it legally optional to list gender on birth certificates – though a child’s sex will be still recorded at birth as male or female.

The Scottish Greens did not respond to requests for a comment.