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Reform “under the radar”? Lessons for Scotland from the Development of Gender Self-Declaration Laws in Europe

Document Cited authorities 2 Cited in Related
Vincent
Date01 May 2020
Pages281-289
DOI10.3366/elr.2020.0634
Published date01 May 2020
INTRODUCTION

Between 2014 and 2019 at least eight European jurisdictions introduced laws allowing a person to change their legal sex on the basis of self-declaration, collectively referred to by the Scottish Government as “international best practice”. This article examines the international best practice narrative and underpinning ideas, the pace of reform, the strategies used to secure change and the implications for reform in the UK. First, the paper reviews the disagreement at the heart of the debate, followed by the current legal position in the UK and the recent proposals for reform. The main body of analysis examines the expansion of gender self-declaration laws in Europe and how change was achieved within such a short time-frame. We argue that this phenomenon may, on the available evidence, be read as indicative of policy capture1 at a supra-national level and conclude that the international precedents should be subject to more critical scrutiny before taken as a reason to pursue reform.

 SEX AND GENDER IDENTITY IN LAW

The gender self-declaration movement is of social and political significance because laws and policies based on these principles may affect other rights-holders. Notably conflict can arise when laws and policies that treat a person according to their self-declared gender identity are allowed to override sex-based rights.

In the UK, the failure of policymakers to recognise this conflict of rights has led to the introduction of policies based on gender self-identification without due consideration of the impact on women's existing sex-based rights.2 Those rights are premised on a view which holds that the physical, economic and social consequences of being born female are so significant that women require specific protections in law and policy for reasons of safety, privacy and dignity, including single-sex services and spaces. The opposing view posits that everyone has an innate gender identity, and that for some individuals, this may be inconsistent with their biological sex.3 From this perspective, it is asserted that a person's self-perceived gender identity should take precedence over sex in all or almost all contexts.4

How governments and service-providers codify these ideas in law and policy have significant implications for rights and protections accorded to women such as sex-segregated domestic violence refuges, changing rooms, hospital wards, prisons, sports and all women shortlists.5 As the Faculty of Advocates observes, the introduction of gender self-declaration is “a legally complex and challenging proposal, requiring careful balancing of disparate rights and interests”.6

 LEGAL RECOGNITION OF GENDER IN THE UK

Conceived as a pragmatic step aimed at a very small number of people,7 the UK-wide Gender Recognition Act 2004 (“GRA”) allows a person to change their sex in law. Applicants for a Gender Recognition Certificate (“GRC”) must demonstrate to a Gender Recognition Panel (“GRP”) that they have a diagnosis of gender dysphoria and have been living in what the law terms their “acquired gender” for at least two years. Surgery or other physical interventions have never been a legal requirement. The change of sex in law is subject to some exceptions, set out in the GRA itself, and in the later Equality Act 2010, although there is disagreement as to how some of these exceptions should operate.8

Reforming the <a href="https://vlex.co.uk/vid/gender-recognition-act-2004-808398165">Gender Recognition Act</a>

Following a 2016 manifesto commitment to “review and reform gender recognition law, so it's in line with international best practice”,9 in 2017, the Scottish Government published proposals to put the legal recognition of gender identity on a self-declared basis.10 This was followed by similar proposals from the Westminster Government in 2018. However, breaking with the international trend, both the Westminster and Scottish proposals met with public criticism, prompting both governments to pause their plans.

In December 2019, the Scottish Government consulted again, on a draft Bill proposing to remove the requirement for a diagnosis of gender dysphoria and the involvement of the GRP.11 Applicants would now simply declare that they had lived in their “acquired gender” for three months and intended to live permanently in their “acquired gender”. What it means to live in an “acquired gender” has never been defined in law: what is new here is the removal of a third-party decision that this has been adequately demonstrated. Applications would be open to those living and/or “ordinarily resident” in Scotland. The proposed reforms remain controversial, principally in...

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