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Faculty foresees problems in going it alone on gender recognition

7 March 2018

Going ahead with a new system for legal recognition of acquired gender in Scotland, ahead of the rest of the UK, could cause problems, the Faculty of Advocates has suggested.

In its response to a consultation on the Scottish Government’s proposals, Faculty believes that it is important to transgender people to have their status consistently recognised, which would not be the case if, for example, UK passports and driving licences are issued showing a different gender to that recognised under devolved Scots law.

The Scottish Government is looking to introduce a self-declaration system for legal gender recognition, removing the need for applicants to produce medical evidence or evidence that they have lived in their acquired gender for a defined period.

No plans have yet been announced to reform the UK-wide Gender Recognition Act 2004, despite a call from a Westminster committee more than two years ago.

Faculty comments in its response: "It will be important to any transgender person to ensure that his or her status is consistently recognised, at least within the United Kingdom. It is not yet clear whether proposals for self-identification are being taken forward elsewhere in the United Kingdom.

"The Scottish Government acknowledges that certain aspects of identity are reserved matters. A passport and a driving licence in one gender, but Scottish recognition in another, will cause difficulties for the person concerned and for others who rely on such documents for identification purposes.

"It may be considered desirable that there is consistency among the jurisdictions of the UK in relation to gender recognition."

The proposals also intend to lower the minimum age of applicants from 18 to 16, and while the Faculty supports the change, it favours the availability of a 'straightforward' reversal process up to the age of 21.

In relation to children under 16, the Faculty would want applications to be made through the courts.

"We consider that in the case of a child aged under 16, independent scrutiny is appropriate and that the courts are best placed to deal with this issue… any assessment of the application would be governed by the child’s welfare as the paramount consideration", it states.

Click here to view the full response.


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