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The proposals announced this week by the Scottish government to reform the Gender Recognition Act would change the law in a fundamental way. The draft Bill would establish the criteria for legal status of sex as a matter of simple self-declaration of ‘gender identity.’ If passed, the bill would erode the material, biological basis for the protected characteristic ‘sex’, which would affect the associated rights and protections of women and girls as the female sex. It would change the legal and cultural definition of ‘woman’ from a person who is of the female sex to a person of either sex who has an internal feeling of being a woman – which presumably would exclude women who experience no such womanly feeling.

Codifying this ideological belief into law would undermine freedom of thought and speech for all people who do not believe that being a man or a woman, a boy or a girl, is defined by subjective inner feelings and not the objective reality of biological sex. This is already happening. A UK employment tribunal judge this week ruled that the belief that biological sex is immutable is “not worthy of respect in a democratic society”.

The Scottish draft Bill is a proposal which would allow any person to gain legal status as the opposite sex for whatever reason or motive, based only on their self-declared identity which no-one else would have the right to question. To be clear, any man who says he’s a woman may be issued with a new birth certificate to say that he was born female. Although the draft Bill states that false declaration would be a criminal act, the reality is that a law based on self-declaration contains no mechanism by which one person’s inner feelings may be assessed as ‘true’ and another person’s as ‘false’.

What are the draft Bill proposals for children and young people?

The draft Bill fundamentally changes the situation for 16 and 17 year-olds. Not only does it propose that the minimum age for a Gender Recognition Certificate (GRC) be reduced from 18 to 16, but that the waiting period be reduced from 2 years down to 3 months and that the current requirement for medical evidence of a diagnosis of gender dysphoria be removed.

Essentially the law would validate the ‘affirmation’ approach towards children and young people: a teenager would be able to gain legal affirmation as the opposite sex. The law would consolidate an adolescent’s belief that their gender identity is their true sex, an idea which teenagers are learning online and through teaching materials in the classroom produced or promoted by transgender lobby groups.

The draft Bill states:

“The draft Bill does not affect the professional responsibilities of those offering treatment and support to those distressed or concerned about their gender identity, nor does it otherwise affect the right to access such services in Scotland.”

We think it would have a significant effect. A 16 year-old may be very certain of their gender identity and the law would make it impossible for clinicians or counsellors to do anything other than ‘affirm’ that identity no matter what their concerns may be. If the law says a 16 year-old girl is really a boy because she identifies as a boy, how would a clinician be able to do anything other than agree? The government would be legally affirming a girl as a boy without any knowledge or understanding of that girl’s life and what brought her to such a rejection of her sex. The government would be affirming the identity of a teenage girl who is likely to go on to take testosterone and undergo double mastectomy on the basis of that identity. The Scottish government does not consider the possible reasons why so many adolescent girls are taking this pathway and laws should not be changed while we have such inadequate understanding. This is a decision with lifelong consequences and the government must consider the potential harms.

These proposals would have a significant impact on all professionals working with children and adolescents, including teachers, clinicians, doctors and counsellors.

 

What’s the potential impact on children and young people?

The combination of the lowering of the age to 16, the removal of the need for any medical assessment or report and the reduction of the waiting period, would consolidate the move from ‘managing gender dysphoria’ to a system of ‘validating gender identity’ in our understanding and approach towards children. A child struggling with gender dysphoria becomes a child with a right to a ‘gender identity’ that nobody else may question. This would erode safeguarding and proper duty of care towards vulnerable young children and adolescents who express their distress or confusion around their gender by announcing a transgender identity – which they are now encouraged to do at the expense of any deeper thought or exploration of feelings. Self-knowledge takes time. ‘Affirmation’ does not differentiate and takes no account of complexity and confounding factors, it simply assures the child that they are right in their self-perception no matter how it was reached.

If these reforms go ahead children who are distressed about their gender will be encouraged to believe that their feelings are the reality and their sex is immaterial; this is likely to result in more and more children being set on a pathway of life-changing medical intervention before their identity stabilises throughout adolescence and into their early twenties. The unprecedented rise in the number of children, predominantly girls, being referred to the Tavistock GIDS is not yet understood but clinicians have expressed serious concerns and the number of ‘detransitioners’ or those who regret their transition, is growing. We are already facing a potential future health crisis as more and more children make decisions about medical interventions with consequences they are not developmentally equipped to fully understand, the long-term effects of which are unknown.

 

How did the Scottish government reach this decision?

The Scottish government conducted a Child Rights and Wellbeing Impact Assessment, published as part of the 2018 Consultation. Prior to publication of the Consultation they consulted with members of LGBTYouth Scotland, a parent support group called TransparenTsees and Gender Identity Specialists from the Sandyford Clinic in Glasgow and the Chalmers Centre, an adult sexual health clinic in Edinburgh. There is no evidence in the draft Bill that any other professionals with experience in working with gender dysphoric children were consulted, nor any other child and adolescent professionals such as psychologists or psychiatrists.

The government has looked at the issue of gender dysphoria in adolescents not through a child and adolescent development framework but through the prism of ‘rights’. The proposed Bill states:

“The draft Bill provides that the minimum age of applicants would be 16. This is in line with the age at which children and young people acquire a number of rights.”

It goes on to list a number of rights gained by children in Scotland at age 16. It omits to mention that to buy cigarettes, get a tattoo, see, rent or buy any film, place a bet or buy alcohol or consume alcohol in a bar are rights only granted at age 18 in Scotland. This undermines the claim that legal gender recognition is a serious decision.

The Scottish government also considers legal gender recognition processes for children in other countries. Of the countries with systems based on an applicant’s self determination, two (Argentina and Malta) have no age restriction at all, and in Norway it’s age 6. We consider that most people would therefore dismiss these countries as models for Scotland. Of the countries who allow legal gender recognition from age 16, the Republic of Ireland requires two medical reports to confirm the applicant’s capacity; Chile requires psychological or psychosocial reports and Belgium requires parental authorisation and consultation with a psychiatrist. Scotland is proposing nothing.

What is the potential impact on other children?

The draft Bill, in several places, affirms that single-sex exemptions in the Equality Act will protect women and girls and that this proposed bill will make no difference.

5.53. The Scottish Government considers that, as outlined above, there are a range of exceptions in the 2010 Act which can be used when appropriate to protect women, which might in some specific cases require the exclusion of trans women, if the conditions within the exception are met. These exclusions will not change following GRA reform.

But lifting the two year wait and the medical and psychological checks needed to get a gender recognition certificate would be removing an important safeguarding measure. Girls in particular will be put at risk of any man using this law to gain access to their private spaces. Schools would be unable to teach children the concepts of privacy, boundaries and consent if any boy has the right to access girls’ private spaces by simply identifying as a girl. Girls would lose the right to assert their own boundaries with the opposite sex and would learn to push down feelings of discomfort and deny the instincts which protect them. But if the law says a man is a woman only on the basis of his say-so, teachers’ hands would be tied.

If the law says a man is a woman based only on his self-declaration, how can service providers prevent any man who says he’s a woman from accessing the facilities of girls and women?

It is inevitable that public facilities would effectively become mixed-sex under a system of self-ID and single-sex provision or services would be ‘rare’ as the number of people with a GRC increases. The draft Bill quotes the UK Government’s 2018 consultation on reforming the GRA in England and Wales:

“Trans people with a GRC can still be excluded from single sex services, or provided with a different service if it is proportionate to do so on the facts of the individual case. Although reliance on this exception should be rare, it is most likely to be needed in particularly difficult and understandably sensitive areas, such as the provision of women’s domestic violence refuges.”

The draft Bill also states:

There is no evidence from overseas which the Scottish Government is aware of which would suggest that moving to a statutory declaration-based system for obtaining legal gender recognition would impact adversely on the rights of women.

We know of no country that has actually monitored the impact of self-ID on the rights of women and girls. An absence of evidence is not a basis on which to change laws.

The Scottish government has consulted with only a few groups who work to represent and advocate for women and girls or children, and many more groups who promote trans rights. The lack of interest or concern about the true impact on women and girls is apparent in this draft Bill which dismisses women’s concerns with the assurance that existing Equality Act exemptions will protect them. We know that already they are not working.

This public consultation is open until March 17th. The Bill states: “The Scottish Government would particularly welcome any further evidence which professionals working with young people may have for the purposes of finalising this draft CRWIA should the draft Bill proceed.” We think this should have happened before the proposal to lower the age to 16 was considered and we urge professionals to respond now.

In the New Year we will be posting our guide to responding and we encourage everyone to submit their response. This Bill, if passed, would put pressure on Westminster to follow suit, so it is important for women and children not only in Scotland but throughout the whole of the UK.

You can submit your response here.