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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
Annex L: Partial Business And Regulatory Impact Assessment ( BRIA)

182 page PDF

2.0MB

Annex L: Partial Business And Regulatory Impact Assessment ( BRIA)

Title of Proposal

Review of Gender Recognition Act 2004 (the 2004 Act)

1. Purpose and intended effect

  • Background

1.1 Currently, a transgender person who has transitioned and is living as the gender opposite to that of the sex which they were assigned at birth, can have their acquired gender legally recognised in accordance with the provisions of the 2004 Act.

1.2 There are three tracks or routes to recognition under the 2004 Act: the standard track, which was used in 2016-2017 by 93% of applicants; the alternative track; and the overseas track. Under the standard track, applicants must:

  • Satisfy the Gender Recognition Panel (a UK-wide tribunal) that they have or have had gender dysphoria (a condition where they experience discomfort or distress because there is a mismatch between their biological sex and their internal sense of their gender identity). They must produce two medical reports detailing this diagnosis.
  • Satisfy the Gender Recognition Panel that they have lived in their acquired gender throughout the period of two years ending with the date of their application. Evidence demonstrating this, such as their passport, driving licence, payslips, or utility bills must accompany the application.
  • Make a statutory declaration before a person authorised to take oaths that they have lived in their acquired gender through the period of two years ending with the date of the application and intend to live in their acquired gender until their death.

1.3 Action 13 of the Fairer Scotland Action Plan states that the Scottish Government:

“will review and reform gender recognition law so it is line with international best practice for transgender or intersex people”.

  • Objective

1.4 The objective is to consider streamlining and simplifying the existing legal gender recognition arrangements under the 2004 Act to make these less intrusive for applicants and more in line with international developments such as in other countries which have recently adopted new systems of legal gender recognition.

1.5 The Scottish Government proposes, subject to the outcomes of the consultation, to replace the existing arrangements with a ‘self-declaration’ system for legal gender recognition, similar to that adopted in countries such as the Republic of Ireland. Under the proposed self-declaration system there would be no requirement for medical evidence or evidence of having lived in their acquired gender for a defined period. Decisions would no longer be made by a tribunal like the existing Gender Recognition Panel.

1.6 Additionally, the Scottish Government proposes that applications for legal gender recognition could be made by people aged 16 and over.

1.7 The views of respondents are also sought on:

  • a range of identified options for children under 16; and
  • about the options for legal recognition of people who do not identify as men or women, but whose gender identity lies somewhere between or beyond those categories, or who do not have a gender (non-binary people).

1.8 A separate consultation will be published seeking views on next steps for intersex people/people with variations of sex development.

  • Rationale for Government intervention

1.9 Adopting a new system for legal gender recognition in Scotland would require an Act of the Scottish Parliament.

2. Consultation

  • Within Government

2.1 In preparing the consultation, the Scottish Government’s Family and Property Law team have worked with:

  • the Equality Unit;
  • Communities Analytical services;
  • Scottish Government Human Resources;
  • National Records of Scotland;
  • The Scottish Public Pensions Agency (regarding any impacts in relation to public service pensions);
  • NHS National Services Scotland (regarding impacts for the National Health Service Central Register and the Community Health Index number);
  • Public Consultation

2.2 This partial BRIA forms part of a public consultation which will run for 16 weeks.

  • Business

2.3 We conducted interviews with representatives from the following organisations to prepare for this BRIA:

The University of Glasgow
Pinsent Masons LLP
Tesco Stores Limited
A technology company in the global payments industry (the technology company)
A UK-wide association of pension schemes and pension professionals (the pension association)

3. Options

3.1 Option 1: no change

3.2 Option 2: introduce a new self-declaration system for legal gender recognition for people aged 16 and over. Under our proposals, to obtain legal recognition of their acquired gender, an applicant would complete an application form and submit this with a statutory declaration [1] indicating that:

  • they are applying of their own free will;
  • they understand the consequences of obtaining legal gender recognition and
  • they intend to live in their acquired gender until their death.

3.3 Option 3: introduce a new self-declaration system for legal gender recognition and, depending on the outcomes of the consultation, allow under 16s to apply for legal gender recognition.

3.4 Option 4: introduce a new self-declaration system for legal gender recognition and, depending on the outcomes of the consultation, take action to give legal recognition to the gender identities of non-binary people.

Sectors and groups affected

3.5 We consider that the following groups or sectors are affected:

  • Transgender people who want to be legally recognised in the gender with which they identify and in which they live;
  • National Records of Scotland - who currently deal with updating the Gender Recognition Register and issue updated birth certificates to successful applicants for legal gender recognition under the 2004 Act who were born or adopted in Scotland;
  • Employers and business - who may engage with a transgender employee or customer who is seeking to transition to an acquired gender or is living in their acquired gender and who may obtain legal gender recognition; and
  • Pension providers (including businesses with their own employee pension schemes), and which schemes may have members who have changed their legal gender.

Benefits and costs

Option 1: no change

3.6 Option 1- Benefits

Legal gender recognition would still be available using the 2004 Act process. This may have the benefit of stability and there would be no need for further legislation.

3.7 Option 1- Costs

3.7.1 No set up costs or running costs would be incurred. Transgender people would still (in the majority of cases) have to provide medical evidence and evidence of their having lived in their acquired gender for a defined period ending with the date of their application. People aged under 18 could not apply for legal gender recognition. Non-binary people cannot use the legal gender recognition arrangements under the 2004 Act to be recognised in their gender identity.

Option 2: self-declaration system for those aged 16 and above

3.8 Option 2- Benefits

3.8.1 This would streamline the existing legal gender recognition process under the 2004 Act and allow people aged 16 and over to apply. Applicants would experience a less intrusive application process

3.9 Option 2- Costs

3.9.1 Option 2 would lead to costs. However, the Scottish Government does not consider that there would be significant costs in adopting a self-declaration system for legal gender recognition in Scotland. The possibility of legal gender recognition is already provided in the 2004 Act. The majority of associated costs have been incurred with the introduction of the 2004 Act.

3.9.2 For certain legal purposes, for example state and occupational pensions, and social security benefits, a transgender person whose acquired gender has not been legally recognised is treated as being of the sex shown on their birth certificate regardless of their gender identity. In practice, businesses and the third sector must recognise and respect transgender people who are living in, or transitioning to, their acquired gender (either as employees or customers) before they obtain legal gender recognition under the 2004 Act. This is because, subject to limited exceptions, it is unlawful to discriminate against a person on the grounds that they intend to undergo, are undergoing or have undergone gender reassignment.

3.9.3 In practice, transgender people seeking legal recognition under either the standard or alternative track [2] provided by the 2004 Act have lived in their acquired gender for a substantial period of time.

3.9.4 Overall, the organisations interviewed in preparation for this BRIA (for which see Part 4 of this BRIA) took the view that there would be minimal costs for them if Scotland adopted a self-declaration system for legal gender recognition. It was noted by two of those interviewed that smaller organisations might not have formulated a policy in relation to gender diverse employees and service users and that an increase in the numbers of people obtaining legal gender recognition would increase the likelihood that a business would encounter a transitioned or transitioning employee or customer. This may require such organisations to formulate policies longer term and incur costs in doing so. However, these costs would not be the direct result of the adoption of Option 2.

3.9.5 There would be costs relating to the operation of legal gender recognition process to replace the Gender Recognition Panel. (When the 2004 Act came into effect, the UK Government indicated that the cost of establishing the Gender Recognition Panel would be £0.7 million [3] . No contribution has been sought from Scotland towards the running of the Gender Recognition Panel.). The consultation suggests that, if applications for legal gender recognition were made under a self-declaration system, either a team at Scottish Government or National Records of Scotland could then process the applications. There would be one-off costs associated with IT systems, application forms and for training and familiarisation events for staff dealing with applications. We currently estimate these set-up costs to be in the range of £250,000 to £300,000.

3.9.6 This estimate is based on the assumption that the existing Gender Recognition Register constituted by the 2004 Act would continue to be used as part of the self-declaration system for legal gender recognition. (Staff at the National Records of Scotland make an entry in the Gender Recognition Register for a person born or adopted in Scotland who obtains a full Gender Recognition Certificate and having done so can then use that record to provide a successful applicant with a new birth certificate reflected their sex as aligning with their acquired gender.)

3.9.7 Running costs will primarily depend on the numbers of applicants. Other countries that have adopted self-declaration systems for legal gender recognition to replace existing arrangements have seen an increase in the number of applicants. The evidence from other countries which have adopted self-declaration systems leads us to believe that the proposal to adopt a similar system in Scotland, if implemented, is likely to lead to an overall increase in the number of successful applications for legal gender recognition.

3.9.8 Denmark has a similar size population to Scotland [4] and has implemented a self-declaration system for legal gender recognition. In 2014, it received an average of 279 applications per year in the first two years of operation. The Republic of Ireland has a slightly smaller population than Scotland [5] . Between September 2015 (when their new arrangements started) and May 2017, a total of 230 people had been recognised in their acquired gender in the Republic of Ireland. Norway, which has a population of 5.23 million has experienced a significantly higher uptake than Denmark or the Republic of Ireland. In the first eight months of operation [6] there, 706 applications were received. We consider it reasonable to estimate that the numbers of applications from people either born or adopted in Scotland or resident in Scotland, would be in the range of 250 to 400 applications per year. Currently, an average of 25 people per year obtain legal recognition of their acquired gender under the 2004 Act who were born or adopted in Scotland.

3.9.9 Based on the assumption that the number of applications will not exceed 400 per year, we estimate that the running costs of a self-declaration system would be £100,000 per year. Running costs could potentially be offset if a fee were charged for making an application for legal gender recognition. The consultation suggests that if the proposed self-declaration system is adopted, then powers could be taken so that the Scottish Government or National Records of Scotland could charge a fee, subject to a full and careful separate consultation including about the level of any such fees.

3.9.10 Pension policy is a reserved matter to the UK Government, although there are some executively devolved powers of pension policy in terms of certain public service schemes in Scotland [7] . A change of legal gender had the potential to affect pension rights. However, we consider that the impacts of the adoption of Option 2 from the perspective of a successful applicant’s pension rights or of their survivor’s pension rights are now minimal.

3.9.11 In particular, in late 2018 the state pension age will equalise for men and women. Consequently, all people regardless of their legal sex will be entitled to the state pension at the same age. A change of legal gender will cease to have the potential to affect whether a person who is legally recognised in their acquired gender becomes entitled to the state pension at an earlier stage or later stage. (The Scottish Government has committed to implementing new arrangements for legal gender recognition by 2020.)

3.9.12 However, a change of legal gender can affect rights to occupational pensions. Historically men and women have been treated differently for pension purposes, as have widowers, surviving civil partners and same-sex spouses in respect of survivor rights in pensions. For private sector defined benefit schemes, there is a legal obligation to ensure gender equality from 17 May 1990 [8] onwards; in public service schemes, generally only service from 6 April 1988 onwards counts towards accrual of a widower’s same sex surviving spouse or surviving civil partner pension [9] . (In some cases, where a member changes their gender from male to female, there are protections for their surviving female spouse to ensure that they do not lose entitlement as a result of their spouse’s decision to change their legal gender. [10] )

3.9.13 The UK Government has published information about the potential costs of equalisation of survivor benefits [11] . Further information can be found in the UK Government report “Review of Survivor Benefits in Occupational Pension Schemes” [12] .

3.9.14 A recent Supreme Court decision in Walker v Innospec Limited [2017] UKSC 47 [13] now impacts in this area. This case considered an exception in the Equality Act 2010 [14] , whereby the benefit paid to a scheme member’s same sex spouse or civil partner could be less than the benefit paid to their opposite-sex spouse, as it may not be based on the full service of deceased surviving partner. A surviving civil partner or same-sex spouse [15] of a private sector occupational pension scheme member would be eligible to receive survivor benefits based on the member’s pensionable service only from 5 December 2005, when civil partnerships became possible.

3.9.15 Following interviews as part of this BRIA, it seems that many schemes either make no difference in their terms or decide to treat civil partners and same-sex spouses on the one hand and opposite-sex spouses on the other hand, in the same way. This is confirmed by information available from the UK Government [16] . However, the pension association noted that smaller pension schemes with reduced assets, may have sought to rely on the exception in the Equality Act 2010 more often than was the case with larger schemes.

Option 3: self-declaration system with arrangements in place for those under 16

3.10 Option 3 - benefits

3.10.1 People under 16 can apply for legal gender recognition.

3.11 Option 3 - costs additional to identified costs for Option 2

3.11.1 The consultation seeks views on the options for permitting people under 16 to apply for legal gender recognition.

3.11.2 There are some countries operating self-declaration systems for legal gender recognition which permit children under 16 to apply. Where we have been able to identify the numbers of applications by people under 16, they are low as a proportion of the overall numbers. In Norway, which has a similar population size to Scotland, there were 9 children aged between 6 and 16 who applied for and obtained legal recognition in their acquired gender in the period between 1 July 2016 and September 2016. This represents 3.5% of the total number of applicants by September 2016. Given our estimate range of total applicants aged 16 and over of between 250 and 400 in the proposed new Scottish arrangements, fewer than 15 children might be expected to apply.

3.11.3 One of the options for people under 16 applying for legal gender recognition is a court-based process. The costs of using a tribunal or court to consider applications for legal gender recognition would be higher than would be the case if all applications were only considered by an administrative body. There might be start-up costs of £650,000 and then running costs of £300,000 a year for a new Scottish tribunal dealing with such applications. The other options discussed in the consultation (application by parents, people over 12 being able to apply, and applications from under 16s where they had capacity) would still incur costs, but these could reasonably be expected to be substantially less than where a court or tribunal based process were used. For example, if all people with parental responsibilities and rights for a child seeking legal recognition were required to apply on the child’s behalf, the administrative body checking the application would need to check an application to ensure that the evidence indicated that all the correct people had been involved in the application.

3.11.4 Overall, unless a court or tribunal based approach is adopted to people under 16, we anticipate that the additional cost impact of extending the gender recognition system to people under 16 would be minimal.

Option 4: Self-declaration system and recognition of non-binary people.

3.12 Option 4- benefits

3.12.1 The consultation also sets out a number of possible options for offering increased or full legal recognition for non-binary people (an umbrella terms for people who do not identity as either men or women but whose gender identity may lies somewhere between or outwith those categories or who may have no gender). The gender identities of non-binary people would be better recognised in society to varying degrees depending on the option or options selected.

3.13 Option 4- costs additional to Option 2

3.13.1 All the options (other than ‘no change’) intended to improve the recognition of non-binary people, would involve costs. It is not possible currently to accurately identify the costs involved in the recognition of non-binary people, as much depends on exactly which option(s) are chosen. There is little evidence about the number of non-binary people in Scotland but the Equality and Human Rights Commission Note on Measuring Gender Identity [17] reported that 0.4% of people who answered a question about their gender identity reported that they identified in another way from a man or woman. Based on the mid-2015 estimate of the Scottish population of 5,373,000, this suggests that there might be 21,492 non-binary people in Scotland.

3.13.2 We estimate that the option with the lowest potential costs, which would be offset by charging a fee on a cost recovery basis, would be that of allowing a non-binary person to apply to be entered in a Book of Non-binary Identity run by National Records of Scotland. It is not possible to predict the level of interest and the income it might generate. However, given that an entry in the Book of Non-Binary Identity would have no legal effect, non-binary people may not wish to use this new public record.

3.13.3 A review of administrative and other official forms to allow for additional options for non-binary people would have costs in terms of resource time and for the production of new versions of existing paper and online forms or IT systems.

3.13.4 One example of required changes to IT systems would be a change to the Community Health Index ( CHI) number. The Community Health Index is a register of NHS patients in Scotland. The CHI number is a unique 10 numeric character identifier allocated to each patient in NHS Scotland. One of the CHI number’s digits is odd for male or even for female. A patient may request that their CHI number be changed to reflect that they have transitioned and are living in the opposite sex, whether or not they have been legally recognised in their acquired gender by the Gender Recognition Panel. There is no option for a person to be identified as anything other than either male or female. There would be IT costs to enable any change in the Community Index Number allocated to a person to identify them as non-binary. The costs cannot currently be estimated due to the number of NHS Scotland systems which are understood to use the CHI number in its current format (possibly exceeding 400) and which may require to be changed if the format of the CHI were also altered. Changes to the format of other official documents such as passports and driving licences are not within the devolved competence of the Scottish Parliament, but we understand would involve costs in resources and IT systems also.

3.13.5 The consultation refers to two other possible options:

  • Amending the Equality Act 2010 to broaden the protection against discrimination for people who propose to undergo, are undergoing or have undergone a process or part of a process to reassign their sex to include all people (including non-binary people) who face discrimination as a result of their gender identity; and
  • Full legal recognition for non-binary people using the proposed self-declaration system whereby there would be recognition of non-binary people as an additional legal sex along with male and female.

3.13.6 Increasing the protections against discrimination on the basis of a person’s gender identity and the introduction of a new legal sex for people with a non-binary gender identity would have financial impacts for business and service providers, including in the public sector. For example:

  • NHS Scotland currently aims to accommodate all patients in hospital in single-sex wards;
  • toilets or changing facilities are often designated for the use of either men or women;
  • the Scottish Prison Service has estimated that the cost of a new small prison unit for 20-30 people might be between £8.7 million and £10.7 million including VAT.

3.13.7 The business and third sector organisations we interviewed in preparation for this BRIA agreed that legal recognition of non-binary people would require IT systems to be upgraded. In particular, two interviewees noted that an employer operating PAYE [18] , HM Revenue and Customs require them to provide information about whether employees are male or female when making a payroll return.

3.13.8 There are legislative options to reduce the impact of legal recognition of non-binary people on business and third sector. For example, one option could be to limit any requirement to adapt existing services or facilities for non-binary people only to what is reasonable in the particular circumstances. There are precedents for this. For instance, a disabled person’s employer is under a duty in terms of the Equality Act 2010 to make reasonable adjustments to enable the disabled worker to access what they need to do and keep their job. Under those arrangements, what is reasonable for an organisation will depend, in part, on the size and nature of the organisation. Any limitation of this nature might require amendments to the Equality Act 2010, which is generally reserved to the Westminster Parliament.

3.13.9 Permitting non-binary people to apply for legal recognition using the proposed self-declaration system of legal gender recognition would increase the number of applicants. The running costs of the system would increase accordingly. It seems likely that there would be a high initial intake of applications from existing non-binary people. When it first become possible for a transgender person living in their acquired gender to seek legal recognition under the 2004 Act, in the first year or two of implementation there were high numbers of applications compared to later years. Numbers have since remained relatively steady. In the financial year 2005-2006, there were 1,002 applications made to the Gender Recognition Panel; but the number of applications reduced in 2006-2007 to 693 and then reduced substantially again to 294 in 2007-2008. If the same number of non-binary people applied for legal recognition as trans men and trans women, additional member(s) of staff would be required to examine and process the applications. Running costs can be expected to increase commensurately.

3.13.10 The estimated set-up costs would also increase substantially from those under Option 2. This is because further IT changes would be necessary. Changing the National Records of Scotland’s registration and related systems so that people could obtain a new birth certificate showing them to be legally recognised as non-binary would involve substantial additional IT and administrative staff time. Other national registers, such as the Register of Deaths and the Register of Marriages would also require to be able to record information about the legal sex of recognised non-binary people. For the purpose of recognising same sex marriages, the estimated costs of changes to the registration administration and family history system of National Records of Scotland were £75,000, for updating their statistical systems were £45,000, and for changes to forms and extracts were around £80,000.

4. Scottish Firms Impact Test

4.1 To appreciate the impact that the proposed legislation may have on businesses operating in Scotland, we sought to engage in a variety of business and third sector organisations, including financial institutions, a law firm, a University and a pension association. We secured interviews in March, April and May 2017 with the following:

  • The University of Glasgow;
  • Pinsent Masons LLP;
  • Tesco Stores Limited;
  • A technology company in the global payments industry (the technology company)
  • A UK-wide association of pension schemes and pension professionals (the pension association)

4.2 The interviews with the University of Glasgow and the pension association were conducted face to face. The other interviews were conducted by telephone conference.

4.3 All the organisations were asked questions concerning:

  • the potential impacts of a self-declaration system for legal gender recognition;
  • the extent to which their record keeping systems necessitate that all staff are identified as either male or female;
  • the extent to which employees and service users can identify themself using gender neutral titles, such as “Mx”;
  • the use of the recorded data about sex or gender identity in their staff records;
  • whether they thought the legal recognition of non-binary people’s gender identity as a new legal sex would impact on their IT systems; and
  • any other impacts they thought might arise if the gender identities of non-binary people were legally recognised.

4.4 The pension association provided information as to what they thought might be the impacts for pension schemes.

Self-declaration system for legal gender recognition

4.5 The majority of the organisations interviewed considered that the adoption of Option 2 (adoption of a self-declaration system for people aged 16 and above) would have minimal impact for them. Both the pension association and Pinsent Masons LLP noted that the likely increase in the numbers of people obtaining legal gender recognition under Option 2 might have a greater impact on smaller organisations who had not yet formulated policies on an employee or service user who had obtained legal recognition in their acquired gender. Smaller pension schemes, for example, would be unlikely to have encountered a member having legally changed their gender and would have costs in ascertaining the options and the impact that the change of legal sex had for that individual member or their survivor.

4.6 Several of the organisations interviewed had existing published policies supporting transgender employees and service users (Tesco Stores Limited, Pinsent Masons LLP and the University of Glasgow) and had sought advice or training from organisations such as Stonewall or Mermaids.

Non-binary recognition- IT and facilities

4.7 In respect of Option 4, there was uncertainty around the impacts and costs of legal recognition of non-binary people.

4.8 The organisations interviewed were aware of non-binary people and some had adapted their policies. Pinsent Masons LLP allowed a staff member and/or a service user to express a preference for the use of a gender neutral title such as “Mx”. Tesco Stores Limited were working towards staff being able to do so when their HR and payroll systems were implemented. Pinsent Masons LLP were considering making the option of gender neutral toilets available where possible in existing buildings and when they take on a new office.

4.9 Several interviewees noted that their own IT systems would require to be updated at a cost. Tesco Stores Limited advised that when their new IT system was implemented it would be capable of holding information about gender identity beyond male/female or man/woman. Pinsent Masons LLP already sought gender diversity information from applicants for employment and held these securely but thought that there would be some IT costs for updating their systems to reflect legal recognition of non-binary staff. Both Tesco Stores Limited and the University of Glasgow noted that all payroll systems had to designate every employee as male or female, because of the HMRC payroll reporting requirements. The University of Glasgow noted that the Higher Education Statistical Agency collected information about the sex and gender identity of both university staff and students and the University carry out monitoring exercises in support of this.

Pensions

4.10 The University of Glasgow, Tesco Stores Limited and the technology company were able to confirm that there would be no impact of the proposed changes on the operation of their occupational pension schemes. The pension association advised that there might be complex potential impacts for survivors’ rights in defined benefit pension schemes, where the scheme member changed their legal gender and had been in a same sex marriage at the time. If one spouse in a same sex marriage changed their legal sex, this potentially changes the entitlement under a pension of their survivor from those of a same sex marriage to those of a mixed sex marriage [19] .

4.11 Under an exception provided by the Equality Act 2010, when dealing with the survivor of a member in a civil partnership or same sex marriage, a pension scheme can limit the survivor’s benefits to the period of the member’s service on and after 5 December 2005, over and above any contracted-out guaranteed minimum pension. In their experience, many schemes already chose not to rely on this exemption and paid equal benefits on death to the member’s survivor irrespective of their sexual orientation but schemes which were smaller and had fewer resources, might decide in their circumstances to rely on this exemption.

[Note: The interview with the pension association was held before publication of the Supreme Court decision in Walker v Innospec Limited [2017] UKSC 47 [20] .]

4.12 The recognition of non-binary people also had the potential to impact on pensions as often actuarial calculations are based on the member’s sex as male or female, though increasingly they understood that unisex factors were being used to inform calculations.

Competition Assessment

4.13 The proposals will not limit, either directly or indirectly, the number or range of suppliers.

4.14 The proposal will not limit the ability of suppliers to compete nor will it reduce supplier’s incentives to compete vigorously.

Test run of business forms

4.15 There are no new forms for business proposed. If the proposed self-declaration system for legal gender recognition were adopted, there would be a new form for an application and associated forms to complete, but these will not impact on business.

5. Legal Aid Impact Test

5.1 There could potentially be costs for the Scottish Legal Aid Board in relation to the adoption of a self-declaration system for legal gender recognition, but any impact would be minimal.

5.2 For example, the proposal to cease requiring applicants to provide medical evidence or evidence of the applicant having lived in their acquired gender throughout a defined period prior to the applicant date would reduce any potential requirement for an applicant to consult a solicitor as part of the process of preparing their application. This should minimise the number of applicants who seek legal advice and use legal aid advice and assistance.

5.3 The consultation proposes that an appeal against a refusal of an application for legal gender recognition under the proposed self-declaration system would be made to the sheriff court, whereas under the 2004 Act arrangements an appeal in Scotland would be for the Court of Session. Removing the necessity for evidence to be submitted by an applicant for legal gender recognition over 16 should also reduce the possibilities for an application to be refused and thereby reduce the likelihood of appeals. The number of appeals under the 2004 Act is very low in any event. There have been two appeals, one of which was to the Court of Session in Scotland

5.4 If the proposed system were extended to allow people under 16 to apply, there may be implications for legal aid if the option for use of a court-based process were adopted. We have estimated that fewer than 5 children might be expected to apply for legal gender recognition given the numbers experienced in Norway which permit children aged 6 to 16 to change their legal gender. Consequently, we anticipate that the impact for legal aid of extending the gender recognition system to people under 16 would be minimal.

Enforcement, sanctions and monitoring

Enforcement and sanctions

6.1 The consultation proposes that a transgender person who wishes to apply for legal recognition of their acquired gender should be required to submit a statutory declaration stating that they:

  • are applying of their own free will;
  • understand the consequences of obtaining legal gender recognition; and
  • intend to live in their acquired gender until death.

6.2 Under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995, any person who knowingly and wilfully makes a statement false in a material particular in a statutory declaration shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding two years or to a fine or to both such fine and imprisonment.

Monitoring

6.3 Statistics about the numbers of people obtaining legal gender recognition under the 2004 Act are published quarterly [21] . We do not propose that this should change.

Implementation and delivery plan

7.1 The consultation will influence the Scottish Government’s decisions about next steps and the content of any draft legislation.

7.2 If a Bill should be introduced, this BRIA would be finalised, taking account of points made by consultees. The final version of the BRIA would be published.

Post-implementation review

7.3 If legislation is taken forward to reform the 2004 Act, that legislation would be reviewed within 10 years.

Summary and recommendation

Summary of costs of adopting a self-declaration system for legal gender recognition in Scotland

8.1 The table of estimated costs below assumes that:

  • up to 400 applications for legal gender recognition would be received per year;
  • the Gender Recognition Register created under the 2004 Act would continue to be utilised to produce new birth certificates for successful applicants who were born or adopted in Scotland;
  • the proposed self-declaration system would apply to people aged 16 and over whose acquired gender (the gender in which they live and with which they identify) is that of a man or a woman.
Cost Estimate
Start-up costs (including IT systems, application forms, staff training, and preparation of guidance for applicants) £250,000 to £300,000
Administration costs Up to £100,000 per annum

8.2 There would be additional costs if:

  • applicants younger than 16 could apply for legal gender recognition; or
  • non-binary people were legally recognised.

Declaration and publication

I have read the Business and Regulatory Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact has been assessed with the support of businesses in Scotland.

Signed:

Minister’s name, title etc*

Date:

Scottish Government Contact point:

This Will Be Completed After This Consultation And Views Have Been Obtained From Consultees


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