In October 2018, the UK government closed its public consultation on reforming the Gender Recognition Act, leaving the LGBTQ community in England and Wales to wait for the results. Just last week, Scotland announced the results of its own consultation on their Gender Recognition Act legislation, and the results are…. confusing.
Both government consultations sought to canvass public opinion on reforming the Act, so transgender people would be faced with a less arduous process to self-determine their gender. Currently, they need to present evidence to a medical panel in order to gain legal recognition.
Now the Scottish government has confirmed that it will draft legislation that enables a system of self-declaration for trans people – but that a second consultation will also take place on this proposal. For many in the LGBTQ community, this sounds like Scotland backtracking on its initial consultation, and has even been celebrated in some parts of the right-wing media and by anti-trans groups as a triumph (see: the Spectator’s article titled “Holyrood’s trans rights pause is a good thing”).
Becky Kaufmann, the justice policy officer at Scottish Trans Alliance, agrees that the recent announcement has led to huge amounts of confusion. “Essentially, the Scottish Government have committed to draft a bill and put it out for public consultation, with a commitment that they still plan to legislate within this parliamentary term,” she says. “The Scottish Government often does a consultation on the actual draft of a bill after consulting on the general principles of the bill previously.”
A similar process was followed during the passage of the marriage and civil partnership bill that legalised equal marriage in Scotland in 2014, Kaufmann says. “Draft bill consultations can be a way of facilitating understanding among politicians and the public of the detailed facts of a piece of legislation and reduce misunderstandings.”
In fact, the results of the consultation are largely encouraging. More than 15,000 people responded, making it one of the most responded to consultations in the history of the Scottish Parliament. According to a government factsheet on the responses, “60 percent of all respondents were in favour of reform and 65 percent of respondents from Scotland were in favour”.
These responses have led Holyrood to commit to creating a draft bill that will mean trans people applying for a gender recognition certificate no longer have to provide medical evidence to a panel, though they will need to undertake a mandatory three-month “reflection period” after submitting their application to confirm that they wish to proceed.
But this doesn’t mitigate the fact that a second consultation lengthens an already agonisingly long wait for legislative change, especially when the Scottish government has already taken 16 months to analyse responses to the initial consultation. Kaufmann says that there is "definitely a bit of cold feet going on but that’s more reflected in the watered down proposals", which don't recognise nonbinary identity or extend self-identification to 16- and 17-year-olds.
“Trans people are frustrated with how long reform to the Gender Recognition Act is taking, and the stress this is placing on our communities,” she says. “We call on the government to publish the draft bill swiftly after the summer recess – further delays are simply providing more space for inaccurate and harmful conversations to carry on, and leadership on this topic is more important than ever.”
Stonewall Scotland director Colin Macfarlane told VICE that the second consultation should concentrate on the nitty-gritty of implementing a system of self-identification. “It’s important the second round of public consultation doesn’t delay legislative progress and instead focuses on making the system of self-determination work effectively for trans communities in Scotland,” he says.
“The original consultation received over 15,000 responses with nearly two-thirds of Scottish people supporting a system of self-determination. This shows clear public support for reform and bringing Scotland’s gender recognition laws in line with international best practice.”