The BBC reported on 8 December that the UK Government may not recognise the proposed new system to allow people to legally change their gender via a system of statutory self-declaration, often referred to as ‘self-id’.
This is about the Gender Recognition Reform (Scotland) Bill which aims to simplify the process for legal gender recognition in Scotland. The Bill has been amended at Stage 2, and is now at Stage 3 where MSPs can propose further amendments.
The Bill will require applicants for a Gender Recognition Certificate (GRC) to make a statutory declaration that they intend to live permanently in their acquired gender and make an application to the Registrar General for Scotland instead of the Gender Recognition Panel. The Bill lowers the minimum age from 18 to 16, reduces the time period for obtaining a GRC, and does not require applicants to provide evidence of gender dysphoria.
The BBC reported that the UK Government are not ruling out a legal challenge on the Bill and are also considering refusing to recognise GRCs issued under the new Scottish system. It was also reported:
- The UK Minister for Women and Equalities, Kemi Badenoch MP, has written to the Scottish Government (not published) expressing concerns about the GRR Bill and has offered to meet Scottish Ministers to discuss it. The Cabinet Secretary for Social Justice, Housing and Local Government, Shona Robison has said she would be “happy to meet with Ms Badenoch” to discuss the issue.
- Scottish Government officials had tried to set up talks in October, without any response from the UK Government.
This blog sets out the current system for recognising overseas recognition, which countries are currently recognised by the UK Government under its process for overseas recognition, the number of GRCs granted via this route, what the GRR Bill proposes for overseas recognition and what the process is for the rest of the UK recognising Scottish GRCs.
What is the current route and determination for overseas gender recognition?
Under the UK wide Gender Recognition Act 2004 (GRA) a person can apply for a GRC under the ‘overseas route’ if their acquired gender has been legally accepted in one of the approved countries or territories, and they are aged at least 18.
The application must include:
- evidence of their legally accepted acquired gender
- a statutory declaration as to whether or not they are in a marriage or civil partnership.
The gender recognition panel (GRP) must grant overseas applicants with a GRC if these evidence requirements are met.
There is no requirement to provide:
- evidence of a diagnosis of gender dysphoria
- that the applicant has been living in the acquired gender for two years
- that the applicant intends to live in their acquired gender for the rest of their life.
Which countries and territories are on the approved list?
Section 2(4) of the 2004 GRA describes an approved country or territory as prescribed by order made by the Secretary of State after consulting the Scottish Ministers and the Department of Finance and Personnel in Northern Ireland.
The Explanatory Notes to the GRA state that:
“This power will be used to prescribe those countries that have recognition criteria which are at least as rigorous as those in the Act.”
Under this provision there have been two Orders, the Gender Recognition (Approved Countries and Territories) Order 2005/874, which was later revoked and replaced by Gender Recognition (Approved Countries and Territories) Order 2011/1630. The explanatory notes for the 2011 Order state:
“The Ministry of Justice keeps changes to international gender recognition systems under continual review and expects it will be necessary to explore updating the list of approved countries and territories within the next 5 years.”
As the table below shows, the UK Government has not updated the approved list of countries and territories since 2011, which means that countries that have introduced ‘self-id’ are on the list.
Countries/Territories approved in 2005 (revoked) | Countries/Territories approved in 2011 (current Order) | Countries/Territories that have introduced systems of statutory self-declaration, and the year introduced (that SPICe is aware of) |
Australia | Australia | State of Victoria (2019) |
Austria | Austria | – |
Belgium | Belgium | Belgium (2017) |
Bulgaria | Bulgaria | – |
Canada – not including Northwest Territories and Nunavut | Canada – not including Northwest Territories and Nunavut | – |
– | Croatia | – |
Cyprus | Cyprus | – |
– | Czech Republic | – |
Denmark | Denmark | Denmark (2014) |
Estonia | Estonia | – |
Finland | Finland | – |
France | France | – |
Germany | Germany | – |
Greece | Greece | – |
Iceland | Iceland | Iceland (2019) |
Italy | Italy | – |
Japan | Japan | – |
Latvia | – | |
– | Liechtenstein | – |
Luxembourg | Luxembourg | Luxembourg (2018) |
Malta | Malta | Malta (2015) |
– | Mexico City, Mexico | – |
Moldova | Moldova | – |
Netherlands | Netherlands | – |
New Zealand | New Zealand | New Zealand (2021) |
Norway | Norway | Norway (2016) |
Poland | Poland | – |
Romania | Romania | – |
Russian Federation | Russian Federation | – |
Serbia and Montenegro | Serbia | – |
– | Singapore | – |
Slovakia | Slovakia | – |
Slovenia | Slovenia | – |
South Africa | South Africa | – |
– | South Korea | – |
Spain | Spain | – |
Sweden | Sweden | – |
Switzerland | Switzerland | Switzerland (2022) |
Turkey | Turkey | – |
Ukraine | Ukraine | – |
United States of America – not including Idaho, Ohio, Tennessee and Texas | United States of America – not including Idaho, Ohio, Tennessee and Texas | – |
Uruguay | Uruguay | – |
SPICe is aware of five other countries that have introduced systems of statutory self-declaration for legal gender recognition:
- Argentina (2012)
- Chile (2018
- Columbia (2015)
- Ireland (2015)
- Portugal (2018)
How many GRCs have been granted via the ‘overseas route’?
The UK Government’s Ministry of Justice publishes quarterly statistics on GRCs.
The latest available data, which is UK wide, shows that between the year 2009-10 and up to Q2 2022-23 there have been 295 applications made using the overseas route, of these, 216 full GRCs were granted. The data does not show which countries the applicants obtained their gender recognition from. It is therefore not possible to know whether any of the applicants obtained a GRC from a country that is on the approved list and has since introduced a system of statutory self-declaration for legal gender recognition.
What does the GRR Bill propose for overseas gender recognition?
The GRR Bill replaces the ‘overseas track’. Any person who has obtained a GRC in the rest of the UK, or gender recognition overseas, would be treated in Scotland as if they have been granted a GRC by the Registrar General for Scotland.
Under the Bill, a person who has obtained overseas gender recognition can apply to the Registrar General for a confirmatory GRC, but there is no obligation to do so. An application for this must include:
- evidence of overseas gender recognition, or, if that is not possible,
- a statutory declaration in relation to that recognition including the place or register where the details of the recognition would have been available, and the reasons why the evidence cannot be provided.
However, this will not apply if “it would be manifestly contrary to public policy”. For example, in a case where legal gender recognition was obtained overseas at a very young age.
Cross-border recognition of gender recognition certificates
A section 104 Order (under the Scotland Act 1998) is used to make consequential modifications to reserved law, in consequence of legislation passed by the Scottish Parliament. It means that changes can be made to reserved legislation that reflect changes in legislation in Scotland. This process was used for Scottish equal marriage and civil partnership legislation. Section 104 Orders are voted on at Westminster.
Currently, the UK-wide Gender Recognition Panel informs the relevant General Registrar when a GRC has been granted to update birth certificates. Under the GRR Bill, where a Scottish GRC is granted to someone whose birth was registered in the rest of the UK, the General Registrar for Scotland would update the respective Registrar in England, Wales or Northern Ireland. It will be up to the UK and Northern Irish Governments to decide how to respond.
In evidence to the Equalities, Human Rights and Civil Justice Committee (28 June 2022), at Stage 1 of the GRR Bill, the Scottish Government said that there had been an initial conversation at official level, but the formal section 104 process and the formal conversations about mutual recognition had not yet taken place. This was described as quite normal, as a formal section 104 process usually begins near the end of the bill’s passage, or after it has passed.
The Cabinet Secretary said:
“Whether the UK Government changes its processes is clearly a matter for the UK Government itself, as is whether it recognises Scottish gender recognition certificates. That does not affect our ability to make changes to the law here.”
The Scottish Government also said that when the UK Government considers Scottish GRCs, it will need to consider how it recognises gender recognition from elsewhere in the world as the list of recognised countries/territories has not been updated since 2011. The Scottish Government understands that the UK Government was in the process of reconsidering the list, and described it as a “challenging and substantial project.”
In a letter to the Chair of the Equality and Human Rights Commission (17 October 2022), the Cabinet Secretary said:
“If the UK Government does not recognise Scottish GRCs, someone with an English or Welsh birth certificate but ordinarily resident in Scotland would be able to obtain a GRC under the Scottish process but their birth certificate would presumably not be updated.
The effect therefore would be similar to the current situation with Republic of Ireland, which is not included on the UK’s list of approved countries and territories because it has not been updated since before Ireland’s gender recognition process was established, so Irish gender recognition is not recognised in the UK.”
Conclusion
Ultimately, the decision on whether Scottish GRCs will be recognised in the rest of the UK is not a decision for the Scottish Government.
What happens next?
The Bill is at Stage 3 where MSPs can propose amendments. The deadline for amendments is 12 noon on Tuesday 13 December. The Stage 3 timetable is:
- Stage 3 proceedings, Tuesday 20 December, where amendments will be considered by the whole parliament.
- Stage 3 debate, Wednesday 21 December, where members will debate and then vote on whether to pass the Bill.
SPICe Research