Is this just Anti-Trans, Anti-Devolution Political Chicanery?

Yesterday (17/1/23) the UK Government took the previously unprecedented, but legally created at the time of devolution, step of using Article 35 to refuse a bill passed by the Scottish Government to go forward for Royal Assent. This stops it becoming law. It should be noted that there are other options, I’m not sure of the exact number, I think it’s Article 33, but if there are laws passed by the Scottish Parliament and the UK Parliament thinks they have a problem at law, they can - and have - used this to challenge them in the Supreme Court (and its predecessor) and have sometimes forced either clarification or amendment of the law. You have to wonder why they didn’t take that route this time. Their critics wonder if it’s simply because they know they’d lose.

Now, I’m not a lawyer, I’m not going to get into the weeds about this law proposed by the Scottish Parliament. If I did, I would certainly miss things.

As I understand it - and my understanding is based largely on a statement by the Scottish Solicitor General, the person in charge of giving legal advice to the Scottish Parliament, but given during a press interview - plus a number of pieces of commentary about the law, the Scottish law does not change the rights of someone who is transgender, it changes the process of legally changing your recorded gender on your birth certificate. This has knock-on effects for things like pension provision, and how your name and gender are recorded on your marriage (if appropriate) and death certificates, that’s it. Trans people already have a lot of rights, can largely self identify in their own gender, change their name and so on. Asking your bank to change your name is trivial (there are a few bits of legislation, you can’t do it with intent to defraud someone for example) but otherwise they will call you what you want. You can easily ask the passport office to change the gender that appears on your passport (which I didn’t know until I started doing some research for this and can appear different to the gender on your birth certificate if you wish. A GRC doesn’t actually change who you can marry (but it does change how your name and gender are recorded), nor does it change your current marriage if you are married. One thing that, I think makes sense but I haven’t thought about it for long, is that legally changing your gender like this does not change your status on your children’s birth certificates, if applicable (for example, if you were their father but you are now a woman, you will still show as their father).

The current UK law, in its simplest form, requires that you’re over 18, that you present evidence of a medical diagnosis of gender dysphoria, evidence of any treatment you’ve had and evidence of two years living in the gender that you wish to change to. It provides a long list of examples of this - it’s mostly legal or quasi-legal things (driving licence, passport, workplace ID, bank statement etc) with your a name, a gendered title (Mr, Ms etc) and/or a gender marker. (There are other ways to do it, for example if you have had your gender change recognised overseas, but I’m not going to dig into that, it’s not really relevant here.)

The Scottish law changes a chunk of this. It changes the age from 18 to 16, it removes the need for a diagnosis of gender dysphoria (it should be noted that there’s route for that in the current law, but you have to provide evidence of living in your trans gender for six years rather than two) and you have to live in your gender role for six months rather than two years. You also have to affirm (which I believe but I’m not sure is a legal process in Scotland) twice that you want to change your gender. I think affirmation is swearing in front of a suitable witness, rather than telling your mates down the pub but I could be wrong.

As the Scottish person explains it, free of a lot of hysterics and transphobic speech, all the Scottish bill does is change the process. The presentation that I’ve heard on serious discussions seems to support that stance. There is a process under existing UK law. It takes between 2 and 6 years, plus a bit of paperwork (that costs £5) and requires a chunk of evidence from medical professionals (which typically costs a bit more) and from you to show that you’re using your new name and gender identity “living as your new gender role.” The Scottish Law changes the age, the timeframe, and removes the need for a medical diagnosis, and adds the two affirmations. That’s it.

Critics of the bill poke fun of the need to live in the gender role for six months provision. They clearly don’t know that you’re required to provide evidence of doing that for two years under the existing law. I’m not surprised, they’re just attack dogs after all, screaming their outrage that anyone would make anything easier for trans people. Other critics are saying that this would allow Scottish trans women into women-only spaces. I have not poked about in long grass of the various laws that govern this but, as I understand it, the Equalities Act (2010) has provision that allows some women-only spaces (e.g. women’s refuges) to exclude people who were born men, regardless of what it says on their birth certificate in some circumstances. (This addresses a fear that abusers will somehow fake gender dysphoria to gain entry to the refuge in pursuit of their target but also seeks to protect those women who are so traumatised that the sight of a male body can cause panic attacks.) It’s not clear to me how a process that allows you to amend your birth certificate more readily changes that? Oh yes, transphobia makes all your fears come true, that’s how.

I should say that it is possible that there is some provision that is not clear to me that does affect access to women-only spaces, however, I should also say there is a clause in the bill that specifically states it does not override the provisions of the Equalities Act, it’s one of the amendments that had to be written in as part of the discussions in the Scottish Parliament in order to get the bill passed. I’m not sure, as I’ve had it explained, it’s necessary, but the clarity seems valuable.

Is there more to this than transphobia? Honestly, I can’t be 100% sure. I am not a lawyer, I won’t pretend to be a lawyer. There may be things that I have missed. But every serious discussion I’ve heard makes it smell like a Tory government that is transphobic picking a political fight rather than a legal one.

(I should note, while I’d rather the Scottish bill was passed, and I’m not affected by its provisions, nor am I an expert in this area, there is a part of me that would feel more comfortable if that age limit was 18. I am absolutely not denying people the right to live in their preferred gender role before that, I just think making adult decisions about the rest of your life, you should be an adult. But, I’m not so strongly of that opinion that I think the bill is terrible law and should be opposed.)

A lot of the so-called debate around this centres of the mistaken belief that a GRC - a legal document that changes your birth certificate - is required for you to identify as trans and change how you present your gender identity. It’s really not. They interviewed someone who has this certificate and the only time it has been relevant was when she got married. She wanted her wedding certificate to show her as a woman rather than a man, which is why she did it, she had been living as a woman for years before that time. She has never used it since. She likened it to a birth certificate - in the UK it is a legal means of identification, you can use it, and I know where mine is, just in case. Honestly, I don’t remember the last time I actually used it. She only remembers using her GRC because she also remembers her wedding day…

Because it came up a lot in the debate, I looked at the NHS for their guidance on recording gender identity data. The NHS is a pretty good indicator because they’re obviously the main point of contact in the UK for trans people wishing to get a diagnosis of gender dysphoria, but they’re also a huge government-funded organisation that is going to comply with best practise for record keeping in this area.

They ask three questions:

1. What is your gender identity? (Male, Female, Non-Binary, Other, Not Known, Not Stated)
2. Is your gender identity the same as your gender assigned at birth? (Yes, No, Not Known, Not Stated)
3. Person Stated Gender Code? (Male, Female, Indeterminate, Not Known)

However, for everyday life, it’s actually much simpler than that - the UK has a formal process for changing your name (it costs £42.50), and you can change your gender with it. To change your gender you may be required to swear a statutory declaration, and there’s a small fee (£5) for doing this normally, although you may be able to do it free at the local magistrate’s court.

Banks will always accept your name change by deed poll (there seems after a quick search a bit of a difference about whether they’ll switch before that but I literally only read the few lines of text on the search page so I don’t feel confident about it), your employer has to change after you turn up with a deed poll, but may well take your expressed wish without the paperwork. So, for a bit less than £50 and a bit of time and effort, you choose your name and gender title. There’s a LONG list of all the people you need to notify…

It’s not quite as simple as standing up and saying “I identify as a gnu” but all the people with their histrionic speeches about what this bill means really don’t understand the law as it stands.

I really do have the utmost sympathy for the victims of domestic abuse, rape and the like. But is the way to protect them to demonise the trans community? Really?