#GwiththeT.scot

There are so many parallels to be drawn between the fight for equality for gay men in the 80s and 90s and the fight for trans rights now. Often it feels like the words used so cruelly against us have been re-purposed to be used against trans people. We say not in our name.

To all gay men who want to do more to support their trans friends, siblings, colleagues and even strangers, please respond to the Scottish Government consultation on the draft Gender Recognition Reform (Scotland) Bill, let’s put our words into action.

Find out more about who we are and why we support trans equality.

A guide to support gay men in responding to the Gender Recognition Reform (Scotland) Bill consultation.

The Scottish Government are currently consulting on proposed legislation that will make it easier for trans people to change their birth certificates to record their correct sex.

As gay men, and a minority, we know all too well that in the fight for our own equality we have relied on allies to support us in winning equality. It is vital that we as LGBT people, stand together in support of trans equality.

Introduction

The purpose of this guide is to support gay men who want to respond to the Scottish Government consultation on a Draft Bill to reform the Gender Recognition Act (GRA) 2004.

Many gay men will remember the backlash during the campaigns to beat Section 28, and for marriage equality. Just like those campaigns, trans people are facing a major backlash online and in some parts of the media, with misinformation and lies about trans people being deployed to frighten people and motivate anti-trans sentiment.

Much of that misinformation deploys narratives that were similarly deployed against us – we know how to beat it – that’s why our support is important.

While this guidance has been specifically created for gay men, there is similar guidance available for trans people and other allies:

Equal Recognition Campaign – http://equalrecognition.scot/supportthedraftbill/

Sisters Scotland – https://sistersscotland.com/

The Draft Bill

In late 2017 the Scottish Government first consulted on reviewing the Gender Recognition Act. Around 16k responses were received, with 60% of responses in support of updating the Gender Recognition Act to introduce a self-declaratory system for legal gender recognition.

The government have now put together a Draft Bill – A Bill is a proposal for a new law, or a proposal to change an existing law that is presented for debate before Parliament. If MSPs then vote for it, it would become an act.

The Draft Bill can be found here and responses to the 5 question consultation can be submitted here. Guidance for answering each question can be found below.

Why is the Gender Recognition Act 2004 (GRA) being reformed?

The Gender Recognition Act (GRA) was introduced 15 years ago, it allows some trans people to change the sex on their birth certificates and gain formal legal recognition of their sex. A trans person must gain a Gender Recognition Certificate (GRC) before they can change their birth certificate.  The Scottish Government wants to improve the process, bringing it in line with internationally–recognised good practice.

The current process is recognised as being lengthy, bureaucratic and invasive. As a result, only about 1 in 10 trans people in Scotland hold a GRC. 

Although trans people are able to change the sex marker on many other records and documents (e.g. driving licence, passport, medical records, etc.) much more simply, a GRC is essential for changing a birth certificate, which determines a person’s legal sex.  Although birth certificates are not used very often, they’re often required at really important moments – like when starting a new job, marrying, or when recording your death.

Why should gay men support the rights of trans people?

As gay men we know the impact that rigid policing of gender and sexuality can have on society, attitudes and most importantly on our well-being. Just as it was wrong for centuries to police the way we could express ourselves, its wrong for the state to police trans people and fail to recognise them as who they really are.

Homophobia and transphobia are like two peas in a pod, they come from the same place. Telling people who they can and can’t love, and how they can and can’t act are at the root causes of homophobia, biphobia and transphobia.

It’s because of that shared experience that trans people have always been with us in our own fight for equality: at the Stonewall uprising or as we’ve won adoption rights, workplace protections, and marriage equality. Trans people have always stood up in support of our equality – that’s why we must also stand up for trans equality.

And there is a further reason. Some of the actors that are now fighting hand in glove to oppose trans equality are the same actors that have opposed every single step on the journey to equality for LGBT people. A victory against trans equality would be a massive boost for them as they continue to argue to regress our own hard won equality.

Will reforming the GRA impact on single sex spaces and services?

No. The use of single sex spaces and services is governed by the Equality Act 2010 and there are no plans for this law to be changed.

A lot has been made of this issue by those opposed to change, unfortunately much of the rhetoric used is reminiscent of the language in the 80s and 90s, sometimes still being heard today, about LGB people being sexual predators and a threat to children using toilets and changing rooms. We knew this language was wrong then, and it’s wrong now.

Trans men and trans women are already able to access single-sex spaces and services in line with how they are living. Reform will only change the process for getting a GRC and changing a birth certificate, neither of which is required for using single sex spaces or services (when was the last time you had your birth certificate checked when entering a toilet?).

What’s in the Draft Bill?

• A system of Statutory Declaration. The bill proposes replacing the current system, (which requires medical evidence, including a psychiatric diagnosis, and Gender Recognition Panels deciding whether or not to grant a GRC), with a simpler system based on statutory declaration. This means a trans person would make a formal, legal declaration confirming they are living in their true gender, and intend to do so for the rest of their life. 
• Time period before and after applying. Currently, a trans person must have lived in their true gender for two years before they can apply for a GRC.  The Draft Bill proposes that applicants state in their statutory declaration that they’ve lived in their true gender for three months. After applying, they also must wait a further three months before a GRC can be granted.
• Lower applicant age. The Bill proposes a reduction in the age at which an individual can apply for a GRC from 18 to 16, allowing younger people to benefit from the reforms.  (It will have no impact on access to medical treatment for young trans people.)

Do provisions of the Bill apply to non-binary people?

No, the Bill does not include any provisions for offering legal recognition to non-binary people. There is an opportunity within the consultation form to recommend inclusion.

In our own fight for decriminalisation some argued that it should only be a certain type of gay man that should be not be criminalised. Some argued that men who were ‘camp’ for example did not deserve to be decriminalised under the law. Luckily common sense prevailed and these exclusions did not happen, and its why we should not exclude non-binary people today. All trans people should be respected in law, not just the ones that fit our binary world.

What are the five questions in the consultation?

Question 1:  Do you have any comments on the proposal that applicants must live in their acquired gender for at least 3 months before applying for a GRC?

Reducing the two year time period in which a trans person must show they’ve lived in their true gender is welcome, however, how many times were we told as gay men that it was ‘just a phase’ or that all we needed was to meet a nice girl. We knew our own minds – and trans people know theirs – that’s why allies should respond to the question by asking that the arbitrary three month period be removed.  They can cite that there is no evidence that the period is beneficial or necessary.

Question 2:  Do you have any comments on the proposal that applicants must go through a period of reflection for at least 3 months before obtaining a GRC?

Similar to the previous question response that the three month waiting period after application should be removed.  Allies can say that there is no evidence that the three month wait after applying is necessary or helpful.  They may wish to add that they are aware trans people already give considerable thought to their decision to transition before applying.

Question 3:  Should the minimum age at which a person can apply for legal gender recognition be reduced from 18 to 16?

Prior to 1994 gay men had to be age 21 and over to consent to sex. It was reduced to 18 and then finally 16 in 2001. This was entirely based on the false assumption that we were too young to understand being gay. The same is true of trans people and it is recommend responding to say the reduction in age is welcome. It would bring the process into line with other rights that young people gain from the age of 16 in Scotland (e.g. to work, vote, marry, be held legally accountable for their actions, etc.)

Also, just as we didn’t become gay at the stroke of midnight on our 16^th birthday, it is recommend calling for a route for young trans people under 16 to update their birth certificates (supported by parents/guardians) to bring these in line with other records and documents they can change (e.g. school, health, passports.)  Since young people use birth certificates to prove their identity more than adults, being able to change these to their lived sex would help ensure their privacy.

It’s also important to note that the process to change your birth certificate has no relation to whether or not you are able to access medical treatments. Decisions about whether a person can access these will continue to be taken by a doctor. No surgery is available to under 18s in Scotland, and this will continue to be the case if the law is reformed.

Question 4:  Do you have any other comments on provisions of the draft Bill?

General Response

Overall, it is welcome that the Draft Bill and suggest comments supportive of the benefits to trans people of no longer needing to collect and present highly personal evidence and medical reports to be recognised as who they are. 

Inclusion of Non-binary people

The Draft Bill does not include provision for legal recognition of non-binary people, who do not identify as exclusively male or female.  This will leave them with inconsistencies in their records and documents and a lack of recognition in daily life.

Legal recognition of non-binary people should be included so they can be recognised in the law, have equal rights and be regarded with respect – it wasn’t so long ago that we lacked these basic rights ourselves.

Question 5:  Do you have any comments on the Draft Impact Assessments?

The Scottish Government completed assessments to find out if proposed changes to the GRA would impact on other people. Draft reports of all impact assessments can be found as annexes to the consultation document here. 

The Equality Impact Assessment concluded that proposed changes to GRA would have no significant impact on those with “protected characteristics” under the Equality Act 2010. This includes women and girls under the protected characteristic “sex.”

The conclusions of the Impact Assessments, including the Equality Impact Assessment should be supported. As described previously it is understood reforms would not change the current right of trans people to use single-sex facilities related to their lived sex (e.g. toilets, changing rooms, support services.)

It is important to remember that all the main Scottish feminist charities already implement policies that are inclusive of trans women and that they issued a joint declaration of support for GRA reform.

Finally

It would be useful for gay men to draw on their own experiences of discrimination in support of GRA reform, some examples of which we have included in this briefing.

For over 50 years LGBT people have campaigned for a better world, it is vital that we continue to do so, together.

Find out more about who we are and why we support trans equality.

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#GwiththeT.scot 2020