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Publication - Consultation Paper

Review of the Gender Recognition Act 2004: consultation

Published: 9 Nov 2017
Part of:
Communities and third sector, Research
ISBN:
9781788513982

This consultation seeks views on proposals to reform the Gender Recognition Act 2004.

182 page PDF

2.0MB

182 page PDF

2.0MB

Contents
Review of the Gender Recognition Act 2004: consultation
Footnotes

182 page PDF

2.0MB

Footnotes

1 At http://www.gov.scot/programme2016.

2 At http://www.gov.scot/Publications/2016/10/9964/7.

3 These are now known as legislative consent motions. The Gender Recognition Bill Motion can be found at the URL below.
http://www.gov.scot/About/Government/Sewel/SessionTwo/GenderRecognition.

4 In 2016-2017, 338 of the 364 applications received were made using the standard track. Source is https://www.gov.uk/government/statistics/tribunals-and-gender-recognitions-certificates-statistics-quarterly-january-to-march-2017-and-2016-to-2017.

5 The standard track application form can be found at the URL below.
http://formfinder.hmctsformfinder.justice.gov.uk/t450-eng.pdf

6 The wording of the required statutory declarations differ depending on whether the applicant is single, married or in a civil partnership.

7 Sometimes the Gender Recognition Panel can only issue an interim GRC, which does not give legal recognition. Where an applicant is in a Scottish marriage or a marriage constituted in England and Wales, but their spouse does not consent to the application, then the Gender Recognition Panel can only issue an interim GRC. If only one of the parties to a civil partnership is applying, then the Gender Recognition Panel can only issue an interim certificate.

8 The 2004 Act, section 10(1) requires that, where there is a ‘ UK birth register entry’ containing ‘a record of the person’s birth or adoption’, a copy of a full GRC must be sent to the appropriate Registrar General holding the record.

9 If the parties to the marriage register the marriage following legal recognition. See National Records of Scotland guidance at:
https://www.nrscotland.gov.uk/files//registration/registration-of-marriages-and-civil-partnerships-following-gender-recognition-guidance-for-applicants.pdf.

10 If the parties to the civil partnership then register the civil partnership following legal recognition. See National Records of Scotland guidance at:
https://www.nrscotland.gov.uk/files//registration/registration-of-marriages-and-civil-partnerships-following-gender-recognition-guidance-for-applicants.pdf.

11 At https://publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/390.pdf.

12 The period is two years if the applicant is applying using the standard track (2004 Act section 2(1)(b)) or under the alternative track a period of six years before 15 December 2014 (where the applicant is in a Scottish marriage or civil partnership) and has continued to live in the acquired gender until the date the application was made (2004 Act section 3C(4)(a) and (b)).

13 2004 Act, sections 3(1) and (2).

14 At http://formfinder.hmctsformfinder.justice.gov.uk/t452-eng.pdf.

15 See http://www.yogyakartaprinciples.org/.

16 At http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=21736&lang=en.

17 The case is AP, Garcon and Nicot v France [2017] ECHR 338 (06 April 2017).

18 The forms can be seen at http://www2.gov.bc.ca/gov/content/life-events/births-adoptions/births/birth-certificates/change-of-gender-designation-on-birth-certificates.

19 The effect of recognition of their gender is to change their legal sex, per the Gender Recognition Act 2015, section 18(1).

20 The statutory application form used in the Republic of Ireland can be seen at http://www.welfare.ie/en/pdf/GRC1.pdf.

21 The required statutory declarations under the 2004 Act arrangements take different forms are in depending on whether an applicant is married, in a civil partnership or is single. They can be seen within the guidance at the URL below.
https://www.gov.uk/apply-gender-recognition-certificate/documents-you-must-provide.

22 Criminal Law (Consolidation) (Scotland) Act 1995, section 44(2) at:
http://www.legislation.gov.uk/ukpga/1995/39/section/44.

23 Registration of Births, Deaths and Marriages (Scotland) 1965, section 43(5) at http://www.legislation.gov.uk/ukpga/1965/49/section/43.

24 2004 Act, section 3A(6).

25 Including a person whose birth is recorded either in a foreign births entry book or the foreign births register provided under the Irish Nationality and Citizenship Act 1956.

26 The Gender Recognition Act 2015, section 2, defines ordinarily resident as ordinarily resident throughout the period of one year ending on the date that the person applies for a GRC.

27 To have an entry in the Central Persons Register, your stay in Denmark must be for more than three months, you must reside in Denmark and be legally permitted to do so (e.g. have a residence permit if you are not a Danish citizen).

28 See The Gender Recognition (Approved Countries and Territories) Order 2011 at http://www.legislation.gov.uk/uksi/2011/1630/contents/made.

29 Source is Table 2 at https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2017-and-2016-to-2017.

30 The Scottish Ministers are also under a duty to keep under consideration whether there are any steps which they could take which would or might secure better or further effect in Scotland of the UNCRC requirements in terms of section 1 of the Children and Young People (Scotland) Act 2014.

31 Source is the Department of Social Protection.

32 Children (Scotland) Act 1995, section 11(7).

33 Where a child has capacity, they can choose to allow their parents to act on their behalf.

34 Age of Legal Capacity (Scotland) Act 1991, section 2(4A).

35 Children (Scotland) Act 1995, section 11(10).

36 Children (Scotland) Act 1995, section 2(2).

37 Children (Scotland) Act 1995, section 6

38 Or where they could not be found

39 Age of Legal Capacity (Scotland) Act 1991, section 2(4).

40 Age of Legal Capacity (Scotland) Act 1991, section 2(4A).

41 2004 Act, section 4E.

42 Divorce (Scotland) Act 1976, section 1(1)(b).

43 At http://www.gov.scot/Topics/Statistics/Browse/Crime-Justice/Datasets/supptab1516. Table 2 gives divorces granted by ground.

44 National Records of Scotland have published guidance on changing a civil partnership to a marriage at https://www.nrscotland.gov.uk/registration/i-want-to-change-my-civil-partnership-into-a-marriage-how-do-i-go-about-it.

45 A full GRC can be issued to a partner in a civil partnership provided the other partner is also being issued with a GRC.

46 Civil Partnership Act 2004, section 117(2).

47 At http://www.gov.scot/Topics/Statistics/Browse/Crime-Justice/Datasets/supptab1516.

Table 3 gives dissolutions by ground.

48 At https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/marriages-and-civil-partnerships/marriages-time-series-data.

49 The consultation is at http://www.gov.scot/Topics/Justice/law/17867/cpreview.

50 Divorce (Scotland) Act 1976, section 1(1)(a) and Civil Partnership Act 2004, section 117(2)(a).

51 2004 Act, section 22(5), (6) and (7).

52 2005, SSI 125 at http://www.legislation.gov.uk/ssi/2005/125/contents/made.

53 Women and Equalities Select Committee Report on Transgender Equality at paragraph 76 onwards: https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/inquiries/parliament-2015/transgender-equality/.

54 See evidence from the British Psychological Society and the British Association of Gender Identity Specialists at the links below.
http://data.parliament.uk/WrittenEvidence/CommitteeEvidence.svc/EvidenceDocument/Women%20and%20Equalities/Transgender%20Equality/written/19471.html http://data.parliament.uk/WrittenEvidence/CommitteeEvidence.svc/EvidenceDocument/Women%20and%20Equalities/Transgender%20Equality/written/19532.html

55 Equality Act 2010 , paragraph 25 of Schedule 3.

56 Equality Act 2010, paragraph 2 of Schedule 9. For example, this enables an employer in limited circumstances and where employment is for the purposes of organised religion, to require that an applicant must be of a particular sex and also not be a person with the protected characteristic of gender reassignment.

57 At https://www.gov.uk/government/news/new-action-to-promote-lgbt-equality.

58 Gender Identity, Gender Expression and Sex Characteristics Act 2015, article 9 at http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=12312&l=1.

59 2004 Act, section 21(6). The European Economic Area includes all 28 EU member states together with Iceland, Lichtenstein and Norway.

60 At http://www.legislation.gov.uk/uksi/2011/1630/contents/made.

61 See https://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/rules-of-court/court-of-session/chap91.pdf?sfvrsn=14.

62 Information on the Family Law Committee of the Scottish Civil Justice Council is available at the URL below.
http://www.scottishciviljusticecouncil.gov.uk/committees/family-law-committee.

63 At https://www.equalityhumanrights.com/sites/default/files/technical_note_final.pdf.

64 Source is a survey of 895 non-binary people in 2015, available at the URL below.
http://www.scottishtrans.org/non-binary/.

65 See our Partial Business and Regulatory Impact Assessment at Annex L for information about the policies of organisations interviewed.

66 Available at: https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.PDF

67 See ICAO Document 9303 available at https://www.icao.int/Security/FAL/TRIP/Pages/Publications.aspx.

68 For adults aged 18 and over. See https://www.passports.govt.nz/what-you-need-to-renew-or-apply-for-a-passport/information/. Those under 18 require a statutory declaration from a parent and also from a registered counsellor or medical professional supporting the change.

69 At the URL below.
https://www.passports.gov.au/passportsexplained/theapplicationprocess/eligibilityoverview/Pages/changeofsexdoborpob.aspx

70 At the URL below.
https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.PDF

71 See http://www.cic.gc.ca/english/passport/apply/new/change-sex.asp.

72 Page 23 of the Government Response to the Women and Equalities Committee Report on Transgender Equality at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/535764/Government_Response_to_the_Women_and_Equalities_Committee_Report_on_Transgender_Equality.pdf

73 There would also be accompanying costs to carry out the necessary alterations to the related IT systems of the National Records of Scotland.

74 Section 20 of the 2004 Act provides that the fact that a person’s acquired gender has been legally recognised does not prevent a gender specific offence being committed or attempted, whether the offence may be committed only by a person of a specific gender or on a person of a specific gender.

75 Equality Act 2010, section 7 defines the protected characteristic of gender reassignment.

76 See Equality Act 2010 Explanatory Notes at paragraphs 41 to 43:
http://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/2/1/4.

77 Evidence of the Equality and Human Rights Commission to the Women and Equalities Select Committee at:
http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/transgender-equality/written/19337.pdf.

78 The SEA consultation authorities are: the Scottish Environment Protection Agency, Scottish National Heritage, and Historic Environment Scotland.

79 An order setting out the prescribed treatment has not been made as yet.

80 The Order can be seen at http://www.legislation.gov.uk/uksi/2011/1630/contents/made.

81 See The Gender Recognition (Application Fees) Order 2006 (SI 758) at http://www.legislation.gov.uk/uksi/2006/758/contents/made. The 2006 order was amended bv The Gender Recognition (Application Fees) (Amendment) Order 2012 at http://www.legislation.gov.uk/uksi/2012/920/contents/made

82 Source is HM Courts and Tribunals Service quarterly statistics for tribunals which can be found at https://www.gov.uk/government/collections/tribunals-statistics.

83 Source is HM Courts and Tribunals Service quarterly statistics for tribunals which can be found at https://www.gov.uk/government/collections/tribunals-statistics.

84 At http://www.irishstatutebook.ie/eli/2015/act/25/enacted/en/html. The Irish application form can be found at http://www.welfare.ie/en/pdf/GRC1.pdf.

85 At http://justiceservices.gov.mt/DownloadDocument.aspx?app=lom&itemid=12312&l=1.

86 Further information including the forms to be used can be found at https://www.accesscanberra.act.gov.au/app/answers/detail/a_id/1691.

87 Information on the process is at http://www2.gov.bc.ca/gov/content/life-events/births-adoptions/births/birth-certificates/change-of-gender-designation-on-birth-certificates.

88 See https://vitalstats.gov.mb.ca/change_of_sex_designation.html#q3.

89 At the two URLs below.
http://www.legislation.govt.nz/act/public/1995/0016/latest/versions.aspx?search=ts_act%40bill%40regulation%40deemedreg_births+deaths+marriages+and+relationships+act+1995_resel_25_a&p=1

http://www.youthlaw.co.nz/information/relationships/marriage-civil-unions-de-facto-2/

90 A New Zealand citizen or person who is permanently resident in New Zealand may also apply.

91 Births, Deaths, and Marriages and Relationships Act 1995, section 28 and guidance at https://www.dia.govt.nz/diawebsite.nsf/wpg_URL/Services-Births-Deaths-and-Marriages-Information-for-Transgender-Applicants?OpenDocument

92 At https://www.dia.govt.nz/diawebsite.nsf/wpg_URL/Services-Births-Deaths-and-Marriages-Information-for-Transgender-Applicants?OpenDocument.

93 At https://www.passports.govt.nz/what-you-need-to-renew-or-apply-for-a-passport/information/.

94 At http://www.czechlegislation.com/en/89-2012-sb.

95 At http://www.finlex.fi/fi/laki/kaannokset/2002/en20020563.pdf

96 A notary public is authorised to administer an oath in Scotland, as is a justice of the peace. Most solicitors in Scotland are notaries public, though not all.

97 The prescribed particulars to be registered are set out in the Gender Recognition (Prescription of Particulars to be Registered) (Scotland) Regulations 2005.

98 2004 Act, sections 8(5), 8(5A), 8(5B), 8(5C) and 8(6).a


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