Gender recognition law in Scotland should keep in step with UK, Faculty of Advocates advises

Gender neutral toilet - Image credit: Patty Marvel via Flickr

Making Scotland’s laws around gender recognition different from the rest of the UK could cause legal difficulties, the Faculty of Advocates has warned.

The Scottish Government is looking to introduce a self-declaration system for gender recognition, without applicants having to produce medical evidence or proof that they have lived in their acquired gender for a certain period.

A consultation on the Scottish Government’s proposals closed at the end of February.

In a response to the consultation, the Faculty of Advocates said that it would be important to any transgender person their status was recognised consistently throughout the United Kingdom.

Certain official documents relating to gender are reserved to Westminster, meaning they could be in a different gender to the person’s legal gender in Scotland.

Although a Westminster Women and Equalities Committee called for reform of the UK-wide Gender Recognition Act 2004 two years ago, no firm commitments to change the law have been made outside Scotland.

The Faculty of Advocates said: “A passport and a driving licence in one gender, but Scottish recognition in another, will cause difficulties for the person concerned and for others who rely on such documents for identification purposes.

“It may be considered desirable that there is consistency among the jurisdictions of the UK in relation to gender recognition.”

The proposals also intend to lower the minimum age of applicants from 18 to 16, and while the faculty said it supports the change, it favours the availability of a “straightforward” reversal process up to the age of 21.

In relation to children under 16, it recommends that applications should be made through the courts.

“We consider that in the case of a child aged under 16, independent scrutiny is appropriate and that the courts are best placed to deal with this issue,” it said.