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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 M: Partial Child Rights And Wellbeing Impact Assessment ( CRWIA)

182 page PDF

2.0MB

Annex M: Partial Child Rights And Wellbeing Impact Assessment ( CRWIA)

CRWIA front sheet
Policy/measure
A general description of the policy/measure
The Scottish Government intends to review and reform gender recognition law, so it is in line with international best practice for people who are transgender or intersex.


This CRWIA relates to transgender people.


“Gender recognition law” is the area of the law which allows a person to be legally recognised in a sex which is different to the one assigned to them at birth.
Initiating department


The responsible team or division. If this is a cross-cutting policy, name the team that has overall responsibility
Family and Property Law team.
Policy aims
What the policy or measure is trying to achieve; what are the expected outcomes
We are reviewing the current law. We will consult on proposals which will directly affect people under 18.


Under the current law, someone can apply for gender recognition at 18. The applicant must show that they have “lived in the acquired gender throughout the period of two years ending with the date on which the application is made”.


The Scottish Government proposes to reduce the minimum age of application to 16, in line with the age at which children and young people acquire a number of rights. The consultation also seeks views on what arrangements should be put in place for those under 16.


The Scottish Government proposes to streamline the gender recognition process generally by removing the need for medical evidence and evidence of living in the acquired gender.
Timetable


What is the time frame for a policy announcement/ consultation/ implementation?
The Scottish Government is holding a public consultation in 2017 and 2018 and intends new arrangements to be put in place by 2020.
Date

29 September 2017
CRWIA Stage 1 Screening – key questions
1. What aspects of the policy/measure will affect children and young people up to the age of 18?

The Articles of the UNCRC and the wellbeing indicators under the Children and Young People (Scotland) 2014 apply to all children and young people up to the age of 18, including non-citizen and undocumented children and young people.
  • If we reduce the age at which a person can apply for gender recognition to 16, this will affect people aged between 16 and 18.
  • If we allow children or their legal representatives to apply for gender recognition before the age of 16, that will affect people under the age of 16.

2. What likely impact – direct or indirect – will the policy/measure have on children and young people?

‘Direct’ impact refers to policies/measures where children and young people are directly affected by the proposed changes e.g. in early years, education, child protection or looked after children (children in care). ‘Indirect’ impact refers to policies/measures that are not directly aimed at children but will have an impact on them. Examples include: welfare reforms, parental leave, housing supply or local transport schemes.
  • Whatever we propose is likely to have a direct effect on people under 18.

3. Are there particular groups of children and young people who are more likely to be affected than others?

Under the UNCRC ‘children’ can refer to: individual children, groups of children, or children in general. Some groups of children will relate to the groups with protected characteristics under the Equality Act 2010: disability, race, religion or belief, sex, sexual orientation. It may be possible to align the CRWIA with the Equality Impact Assessment in these cases. ‘Groups’ can also refer to children by age band or setting, or those who are eligible for special protection or assistance e.g. pre-school children, children in hospital, children in rural areas, looked after children, young people who offend, victims of abuse or exploitation, child asylum-seekers, or children living in poverty.
  • The children primarily affected by the review are children who experience issues around their gender identity. The review will also affect other children, including the peers of those primarily affected.
  • “Gender reassignment” is a protected characteristic under the Equality Act 2010. A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
4. Who else have you involved in your deliberations?

Have you included all policy leads who may have an interest in these developments?
  • We have held an Equality Impact Assessment framing exercise involving colleagues from across government, including Equality Unit, Communities Analytical Services, and a member of the LGBT staff network. Those attending identified significant potential consequences for people under 18.
5. Will this require a CRWIA?

  • Yes. Whatever we propose, including no change, will affect people under 18.
CRWIA Declaration
Tick relevant section, and complete the form.

CRWIA required
CRWIA not required
Authorisation
Jan Marshall, Deputy Director,
Civil Law and Legal System
Date 26 October 2017
CRWIA Stage 2
Scoping - key questions
1. What children’s rights are likely to be affected by the policy/measure?

List all relevant Articles of the UNCRC and Optional Protocols. All UNCRC rights are underpinned by the four general principles: non-discrimination; the best interests of the child; the right to life; survival and development; and the right to have children’s views given due weight.

Article 2

Being transgender may be an “other status”. This article may also be relevant for a child who has a transgender parent or parents.

Article 3

Article 3(1) will be relevant if the Scottish Government introduces an administrative procedure which allows children to change their legal sex.

Article 3(2) may be relevant because the evidence available to the Scottish Government suggests that in some cases, a child who changes their gender may later change their mind about the change.

Article 3(3) may be relevant in relation to health advice and treatment provided to transgender children and to children concerned about their gender identity.

Article 5

This article of the Convention is key in relation to our proposals in relation to transgender children. It is about balancing the responsibilities and rights of parents against the right of the child to make decisions.

Article 6

Some of the options we are considering could affect the development of transgender children.

Article 7

Article 7(1) may be relevant. It provides that “the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.” Gender identity is recorded in the gender recognition register (and displayed on a birth certificate). This article also links to article 8.

The implementation handbook for the Convention [1] , published by UNICEF, says:

“Although the Convention does not specify what must be registered, other rights (to name and nationality, to know parentage, family and identity) imply that registration ought, as a minimum, to include:

the child’s name at birth,

the child’s sex,

the child’s date of birth,

where the child was born,

the parents’ names and addresses, the parents’ nationality status.”

Article 8

The implementation handbook for the Convention says that gender identity is an aspect of identity.

Article 12

Article 12 of the Convention is key in relation to our proposal that transgender children be allowed to apply to change their legal sex.

Article 13

This article may be relevant in relation to transgender children. For example, the right could relate to receiving information about gender identity and the provisions of the law.

Article 14

Article 14 may be relevant in relation to our proposals. The article is about the right to freedom of thought, conscience and religion. There may be cases where a parent or guardian’s beliefs conflict with a child’s beliefs.

Article 16

Article 16 may be relevant. For example, transgender children should be entitled to receive confidential advice. Records or correspondence about a person’s transgender status or gender history should similarly be confidential and should be processed accordingly.

Article 17

Article 17 may be relevant in relation to transgender children. There may be actions the Scottish Government could take in relation to the supply of information to meet the needs of individual transgender children. There is also a wider point about educational material being available which recognises and educates children about diversity.

Article 18

Article 18(1) refers to the principle that both parents have common responsibilities for the upbringing and development of the child. That is relevant to any system under which a parent or parents consent to a decision on behalf of a child.

Article 18(2) concerns assistance to parents and legal guardians in the performance of their child-rearing responsibilities. It may be relevant in relation to advice and support provided to parents of transgender children and parents of children with concerns about their gender identity.

Article 23

This article, which relates to children with disabilities, may be relevant. We refer to evidence about the mental health of transgender children in paragraphs 4.6 and 4.8 below.

Article 24

Article 24(1) provides for the right of the child to “the enjoyment of the highest attainable standard of health”. Article 24(2)(b) concerns “the provision of necessary medical assistance and health care to all children”. The rights relate to both physical and mental health.

Article 26

This article concerns social security. It may be relevant in relation to children with a non-binary gender identity.

Article 28

Article 28(2) says that “States parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention”.

Physical punishment is banned in Scotland’s schools and that applies in relation to all pupils.

Article 29

Article 29 may be relevant, and in particular article 29(1)(a), which provides that “… the education of the child shall be directed to: (a) The development of the child’s personality … to their fullest potential”.

Article 31

Article 31 may be relevant – particularly in relation to non-binary children.

Article 31(1) concerns the right of the child “to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts…”.

Some activities may be split by gender e.g. into activities for boys and activities for girls.

Article 37

Article 37(c) provides that “every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person…”. This may be relevant in relation to transgender children who are deprived of their liberty.

Article 40

Article 40(2)(vii), which concerns the right of a child alleged to committed a criminal offence to “have his or her privacy fully respected at all stages of the proceedings”, may be relevant to our proposals.

Article 40(4) may be relevant in relation to transgender children. It contains examples of alternatives to institutional care. It provides that such alternatives “shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”
2. How will the policy/measure affect children’s wellbeing as defined by the wellbeing indicators? List all wellbeing indicators relevant to the policy/measure. The indicators are: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible and Included. All of the wellbeing indicators are relevant to our proposals.
3. How many children and young people are likely to be affected by the policy or measure? List potential sources of official and other data, or note the need to locate this information. Are there different levels of impact for different groups of children?

3.1 There is limited information about the numbers of transgender children and research suggests that the majority of transgender people do not disclose their feelings to others until after they reach 18. The findings of a study in the UK has suggested that there is an incidence of gender dysphoria of around 1:80,000 in people aged between 4 and 16. [2] Prevalence information based on those seeking medical treatment for gender dysphoria are likely to constitute under-estimates as not everybody will seek treatment at a young age. A range of studies we have identified concerning the numbers of children is set out in Appendix A.

3.2 A number of studies in the Netherlands show that for children, parents reported 1.4% of boys and 2% of girls want to be the opposite sex. For people aged 15 to 70 year olds 0.6% of men and 0.2% of women reported an ambivalent or incongruent gender identity.

3.3 If we assume that the average of the outcomes in these studies is representative in Scotland, then a gender recognition system extended to people under 18 could affect about 15,683 people under that age in Scotland. [3]

3.4 The number of Scottish children presenting at gender identity clinics for advice and support has been increasing. The Young Peoples Gender Service at Sandyford in Glasgow report increasing numbers of young people seeking their help. In 2013, 34 people aged 17 and under were referred. This increased to 187 in 2015.

3.5 Some countries permit children to change their legal gender. The table in Appendix B contains information about 11 other countries and territories including nine which have processes for people aged under 18. There is also some data available about the numbers of under 18 year olds doing so. Numbers are generally low as a percentage of those otherwise obtaining recognition. The Republic of Ireland and Norway have similar populations to Scotland though they have differing recognition systems. In 2016, six 16 and 17 year olds changed their recognised legal gender in the Republic of Ireland which uses a court process for children. [4] This is 5.5% of the total number of people who changed their legal gender there (110) in 2016. In Norway, which does not have a court process for children between 6 and 16, between 1 July 2016 and September 2016, nine children changed their legal gender. This is 3.6% of the total applicants in the same period (250).

3.6 In 2012, the Equality and Human Rights Commission Technical Note on Measuring Gender Identity [5] reported that 0.4% of a sample of around 10,000 people answering a trial question about their gender identity reported that they identified in a way other than as male or female. A survey carried out by the Scottish Trans Alliance indicated that, of the 895 respondents whose gender identity was non-binary, 4.3% were aged under 16. [6]
4. What research evidence is available?

Preliminary identification of the research base for this policy/measure.

4.1 There is evidence that children can experience incongruence between their assigned gender and their gender identity early in life. One study indicates the average age was 8. [7]

4.2 There is a limited evidence base about whether children will continue to experience these feelings in the longer term. Follow-up studies indicate overall that for 85.2% of the children, their distress discontinued either before or early in puberty. [8] However, the rates in the individual studies varied widely. For instance, a 2008 study indicated that in 39% of children the feelings did continue beyond the onset of puberty [9] whereas older studies from before 2000 had very much lower rates for children continuing to experience distress after the onset of puberty. It is thought that pre-2000 studies have included children who would not now be considered to be experiencing gender dysphoria. The studies may also be affected by the small clinical population of children with gender dysphoria – studies looking at whether gender dysphoric feelings persisted had a total population of 317 people.

4.3 There is also evidence that the more extreme a child’s gender dysphoria was before puberty, the less likely it was that their feelings will recede with the onset of puberty. [10] For those who have reached puberty and continue to experience distress, evidence indicates that their distress then tends to intensify and that depression or self-harming behaviours are also more common in ages 12 and over. [11] It is understood that physical changes caused by puberty may intensify the levels of distress experienced.

4.4 Available evidence suggests that factors arising around the ages of 10 to 13 may help explain changes in how a child feels about their gender:
  • the changes in social roles between boys and girls as their gender role become more distinct;
  • the anticipation or experience of physical changes as a result of puberty; and
  • their first experience of experiencing falling in love and discovering their sexual identity. [12]
4.5. Evidence indicates that there is a difference of experience between boys and girls. [13] Although more boys are referred to gender identity clinics, some studies suggest that gender dysphoria is more prominent in girls.
4.6 There is evidence that transgender young people are more than twice as likely as non-trans people to be diagnosed with depression (50.6% compared to 20.6%) and with anxiety (26.7% compared to 10%). There is evidence that this most likely arises due to their experience of discrimination, lack of acceptance, and the abuse they may face and is not an inherent feature of their being transgender. [15] There is also evidence that transition to living in their preferred gender and being supported with gender confirming medical interventions may help improve mental health, in many cases reaching levels experienced in the general population. [16]

The views of transgender children and young people

4.7 Scottish Government officials met members of LGBT Youth Scotland groups aged 13 and over. Their view was that legal gender recognition must be made available to people younger than 16. A person should be able to transition and live in their acquired gender before they have to take their qualifications or go to university. They felt that this would better support their rights not to be discriminated against, for example, at school. A high proportion expressed the desire for their parents (or other people with responsibility for them) to be involved and supporting them through the recognition process.

4.8 LGBT Youth Scotland gave evidence to the Women and Equality Select Committee inquiry into Transgender Equality which setting out the views of transgender people aged under 18 [17] about the benefits of legal gender recognition in terms of reducing discrimination and improving their mental health.
5. Has there been any public or stakeholder consultations on the policy/measure?

This partial CRWIA will be published along with a public consultation document seeking views on our proposals. Prior to publication of the consultation, the Scottish Government met:
  • Members of LGBT Youth [18] groups aged 13 and over; and
  • Gender identity specialists from the Sandyford Clinic [19] and the Gender Identity Clinic at the Chalmers Centre in Edinburgh. [20]
6. Has there been any estimate of the resource implications of the policy/measure?

Capital costs, expenditure, recruitment and training costs for the workforce etc.

Initial expenditure for a new self-declaration system of gender recognition for Scotland (including a new IT system, staff resourcing and training) have been estimated at £250,000 to £300,000, with administrative costs in the first year of around £100,000.
CRWIA Stage 3

Data Collection, Evidence Gathering, Involvement of/Consultation with Stakeholder Groups - key questions
1. What does the evidence tell you?

The evidence base may include demographic information, academic research, service monitoring/inspection reports, service evaluation reports, user surveys etc. Identify any gaps in the evidence base. In particular, look at what the evidence tells you about children and young people’s views and experiences of the relevant service(s); and/or what it tells you about children and young people’s views of the policy proposal.

The evidence suggests that:
  • An increasing number of children and young people are seeking advice and support from gender identity clinics.
  • A number of children and young people self-report as being trans.
  • There is mixed evidence on how many children before puberty reporting incongruence between their assigned gender and their gender identity will continue to experience this in the longer term.
  • Transgender young people are more likely to be diagnosed with depression and anxiety than non-trans young people. This seems to be most likely as a result of trans young people experiencing discrimination, lack of acceptance and abuse.
There is little consistency internationally in relation to the minimum age at which people can apply for legal gender recognition.
2. What further data or evidence is required?

Is the evidence up to date, robust and reliable, sufficiently relevant to what is being proposed, or do you need to commission new research?

The Scottish Government welcomes any further evidence which consultees may have, particularly on whether the availability of legal gender recognition at ages below 16 would improve outcomes for trans young people.
3. Has there been any consultation on the development of the proposal(s)?

Public or targeted consultation with children and young people, their parents/carers, the children’s workforce - is there enough information on the views of the children and young people who will be affected by the policy/measure?

There will be a full public consultation. This CRWIA forms part of that consultation.
4. Should children and young people be further involved in the development of this policy? Are there particular groups of children and young people whose views should be sought?

Specify how - outline the purpose, format, timetable and the questions you want to ask

Yes. The Scottish Government welcomes responses to the consultation from children and young people and will seek to engage further with children and young people during the consultation.
5. Should other stakeholders and experts be further involved in the development of this policy?

Specify how - outline the purpose, format, timetable and the questions you want to ask

The Scottish Government would particularly welcome any further evidence which professionals working with children and young people may have, particularly on whether the availability of legal gender recognition at ages below 16 would improve outcomes for trans young people.

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