By Dr Kath Murray

ORIGINALLY aimed at a very small number of people, the Gender Recognition Act 2004 (GRA) allows a person to change their sex in law, as well as the sex marker on their birth certificate, and provides strong privacy protections. The current Act requires a medical diagnosis of gender dysphoria, as well as evidence that a person has lived in their acquired gender for two years.

In 2017 the Scottish Government published its proposals to put the legal recognition of gender identity on a self-declared basis and remove all medical gatekeeping, citing alignment with “international best practice” as part of its rationale. Pertaining to a larger, more diverse group of people, the proposal looked set to augment the rapid international roll-out of laws that allow people to have their gender identity legally recognised through a process of self-declaration. This movement is pronounced in Europe, where seven jurisdictions adopted versions of such laws between 2014 and 2018. However, breaking with the trend thus far, the proposal met with strong resistance, prompting the Scottish Government to put its plans on hold.

In December 2019 the Scottish Government published a draft bill that provides for the self-declaration of gender identity and opened a new consultation. Yet the issue remains divisive, with no sign of reconciliation between the opposing viewpoints – which revolve round the implications of laws that allow a person to change their legal sex without any form of medical gatekeeping, and the impact on single-sex services and spaces.

The roll-out of gender self-identification laws in other countries remains part of the Government’s reform narrative, although the current consultation does not spell out exactly which jurisdictions reflect “international best practice”. Even within Europe, gender recognition laws vary, for example in relation to the minimum age, the application process, and legal effects on areas such as marriage, succession and military service. Nor have Ministers made clear how other jurisdictions regulate the impact of such laws, for example whether any limitations or exceptions are in place.

The international best practice narrative also raises salient questions as to how gender self-declaration laws gained traction in other jurisdictions; for instance, how widely governments consulted and how rigorously policymakers assessed the potential impact on other rights-holders.

A recent report prepared by international law firm Dentons Europe LLP provides some insights into the strategies used by those advocating for self-declaration. These include intervening early in the legislative process to shape the Government agenda, tying campaigns to more popular policies that act, in the report’s words, as a “veil of protection” (the report cites marriage equality legislation in Norway, Denmark and Ireland), de-medicalising campaigns and lobbying individual politicians.

The Dentons report also advises avoiding excessive press coverage and exposure. Indeed, the most likely explanation for the current hiatus in Scotland is that the proposals for legal change have been given a relatively high profile and subject to public consultation. Thus, whereas the 2011 Irish consultation on legal recognition secured only 40 responses and the subsequent 2014 Bill passed in just over seven months (with an amendment from a medical model to a self-declaration in the later stages), the 2017 Scottish consultation on GRA reform elicited over 15,500 responses.

Against a backdrop of increasing public interest, and with evidence gaps around the roll-out of gender self-declaration laws in other countries, the Scottish Government may wish to look more critically at the international precedents, before heading down the same road.

Dr Kath Murray is writing on behalf of the MurrayBlackburnMackenzie Policy Analysis Collective