January 27, 2023

The Scottish Government is planning to change the way a transgender person changes the gender on their birth certificate. This week will reach the final legislative stage, with amendments to a bill to be debated on Tuesday and the final debate and vote on Wednesday.

What is the Gender Recognition Reform Act (Scotland)?

The bill introduces a self-declaration system for obtaining a Gender Recognition Certificate (GRC). It will remove the need for a psychiatric diagnosis of gender dysphoria and reduce the time a person must have lived permanently in their gender before applying from two years to three months – or six months for 16- and 17-year-olds. The age at which one can apply has already dropped from 18 to 16.

Proponents of the changes hope they will streamline a process that many transgender people find intrusive and upsetting, but will not affect the spaces or services they use in their daily lives.

Critics argue that the simplification — otherwise known as self-identification — will fundamentally change who has access to women-only services and leave them vulnerable to abuse by predatory male offenders.

Who supports the bill at Holyrood?

All the Holyrood parties, except the Scottish Conservatives, have committed to some version of change in their manifestos for 2021, but there is growing unease among a number of SNP and Labor MSPs over the details and impact of the bill.

The SNP had its biggest backlash in the first phase of the bill, but with the Scottish Greens making changes to gender recognition a key part of their cooperation deal with the Nationalists, and broad support from Labor and the Lib Dems, the SNP remains balance of votes in favor of the bill.

The Prime Minister and SNP leader, Nicola Sturgeon – who describes herself as “a lifelong feminist” – has remained consistently committed to the changes, insisting they will not affect women’s rights.

MSPs from all parties have been working on amendments to address concerns about violent men taking advantage of the new system. But the Scottish Tories say too little time has been allowed to discuss more than 150 proposed amendments to the bill, describing it as a “mockery of democracy”.

Discussions on the amendments continued past midnight on Tuesday evening, believed to be parliament’s longest ever sitting, and only half of them were dealt with. Talks will resume on Wednesday afternoon and it remains unclear whether the final vote will be postponed.

Who else has spoken out about the bill?

The changes have attracted national and international attention and polarized opinion.

On Monday night, a last-minute session of the Holyrood committee overseeing the bill heard Reem Alsalem, the UN Special Rapporteur on violence against women and girls, who has previously said the changes “could potentially open the door for violent men who identify as men to abuse the process of obtaining a sex certificate and the rights associated with it.”

It also took evidence from Victor Madrigal-Borloz, the independent UN expert on protection against violence and discrimination based on sexual orientation and gender identity, who argued that UN bodies had consistently found that “legal recognition of gender identity through self-identification is the most efficient and appropriate way to ensure the enjoyment of human rights.” He also warned that attempts to delay or weaken it could be based on “unfounded negative stereotypes about trans women as violent or predatory.”

Author and campaigner JK Rowling, a longtime critic of the plans, last week described the bill as “Sturgeon’s poll tax” and opponents are planning a “no to self-ID” demonstration on Wednesday as MSPs vote.

Fifty groups, including Stonewall Scotland, LGBT Youth Scotland and Leap Sports, signed an open letter published Monday calling on MSPs to support the bill.

An extensive survey for the BBC in February found that the Scottish public was generally sympathetic to the need for change – young people much more so – but uncertain about the details. For example, 51% were against lowering the application age to 16, compared to 31% for support.

What does the UK government say?

The UK government – which scrapped its own plans to amend gender recognition legislation in 2020 when Liz Truss was equality minister – has made clear its displeasure with the Holyrood proposals, with briefings warning of “gender tourism” and “legal chaos” as two systems for obtaining a GRC attendance in the UK.

On Monday, Kemi Badenoch, the UK’s Minister for Women and Equality, met Shona Robison, her Scottish government counterpart, reportedly to urge her to pause the changes. This bill has been devolved, so it’s not clear how the UK government could intervene without breaching the devolution regime.

There have been previous reports that the UK could refuse to recognize the Scottish certificates, but this would conflict with other international agreements with the likes of Ireland, which introduced a self-declaration system in 2015.

How many people will be affected?

Around 30 Gender Recognition Certificates are issued each year to people born or adopted in Scotland, and the Scottish Government estimates that if the law is passed this could increase to 250-300 applicants per year.

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