Recently, the Scottish Parliament (which passes laws separately to the UK Parliament in Westminster under devolution) passed the ‘Gender Recognition Reform (Scotland) Bill’ that would enable Trans people to attain legal gender recognition by a process of informed consent. However, it has become the first ever bill blocked by the UK Parliament under Section 35 of the Scotland Act 1998.
What is the Gender Recognition Act?
The original Gender Recognition Act, passed by Westminster in 2004, established the Gender Recognition Certificate, which enabled Trans people to legally be recognised as a different legal gender to the one assigned at birth.
Why is this important?
The legal recognition of Trans people’s gender identity allows Trans people to live and exist in a far safer and happier capacity than they would without a gender recognition certificate.
This recognition has profound and life-saving impacts for Trans people, who, as stated by the UN Human Rights Office, “are particularly vulnerable to human rights violations when their name and sex details in official documents do not match their gender identity”. The Trans community faces systemic discrimination in every area of life, from housing to healthcare.
Issues with the current Gender Recognition Act
The current Gender Recognition Act is far from perfect. To receive legal recognition under the current Act, Trans people are required to have lived in their acquired gender – that is, having undergone public social Transition – for at least two years. This prevents Trans people who have only recently come out or undergone a public social Transition due to discrimination from accessing legal recognition. Nonbinary people are also not recognised.
Furthermore, being recognised under the Act requires an official diagnosis of gender dysphoria, something that is incredibly difficult to receive under the NHS as waiting lists for appointments related to gender affirming services are years long and getting longer. As well as this, the diagnosis process is led mostly by cisgender psychiatrists and is heavily influenced by an outdated understanding of what it means to be Trans, often built on ‘pathologisation’, or wrongly treating being Trans as a form of mental illness.
These reasons, for many Trans people, render legal recognition practically unachievable under the current Act.
The proposed reforms
The Scottish reforms of the Act sought to address the many issues with the original Act. Most significantly, the Bill sought to transform the process of legal recognition by introducing a model of informed consent, in which Trans people would be able to seek legal recognition without the medical and social gate keeping present in the original Act.
Why is the informed consent model so important?
The informed consent model would make legal recognition possible for countless Trans people who currently face far greater legal discrimination than they would without recognition, but who are unable to achieve legal recognition for a wide range of unfair and discriminatory reasons. This model, known as informed consent, has already been implemented in several other countries, such as Denmark and Argentina, to huge success and the massive improvement in quality of life for Trans people in those countries.
The blocking of the Scottish Gender Recognition Act Reform Bill is a crushing disappointment and obstacle for Trans people in Scotland and the rest of the UK who just want to live safely in their gender and be free from legal and medical discrimination.
Reform of the Gender Recognition Act and the implementation of an informed consent model for recognition, combined with an overhauling of the current Trans healthcare structure in the UK to addresses pathologisation, waiting lists and other issues faced by Trans people in the legal and healthcare system are sorely needed.
Optimistically, the fact that the Bill was passed in Scotland before being blocked by UK Parliament shows change is possible. We should not give up the fight for Trans liberation in Scotland and the UK.
Matthew has recommended some further material for those looking to learn more about issues in Transgender healthcare in the UK:
‘The Transgender Issue: An Argument For Justice’ by Shon Faye