Selfdeclaratory system for gender recognition must be questioned

Legislation on gender must not be over-simplified, says Calum Mackellar

The Scottish Government is currently consulting on its proposed Gender Recognition Reform (Scotland) Bill with written responses being received by the 17 March 2020.

Transgender individuals were first given the possibility of changing their birth gender under the UK Gender Recognition Act 2004. To do this, persons over 18 years of age must obtain a certificate from a Gender Recognition Panel after having been medically diagnosed with significant dysphoria and lived successfully, for at least two years, in the opposite gender.

However, the Scottish Government is now proposing to make significant changes to the present legislation, under the new Bill, by including the introduction of a self-declaratory system for gender recognition.

This would enable individuals to legally change their birth gender without any medical or other evidence.

Indeed, the Scottish Government believes that: “[T]he current system has an adverse impact on people applying for gender recognition, due to the requirement for a medical diagnosis and the intrusion of having their life circumstances considered by the Gender Recognition Panel.”

As a result, the Government believes that “trans people should not have to go through this intrusive process in order to be legally recognised in their lived gender.”

This is because Scottish ministers consider such procedures as being demeaning, distressing and stressful. Adding: “That is, quite simply, not right for our citizens.”

However, the wisdom of these statements can very much be questioned. Indeed, if it is considered to be demeaning and unduly intrusive for an individual to receive a biomedical diagnosis or to go before an expert panel, what kind of message does this then give to all those affected by other biological challenges? For example, what message does this send to those affected by mental health issues who also receive a biomedical diagnosis and go before expert panels such as Mental Health Tribunals which reviews the decision for them to be kept in hospital? Is this also ‘simply not right’ for such patients?

In this respect, the important protection of the relevant individuals should not be taken away just because some may see it as demeaning and intrusive.

Instead it is for the whole of society to seek to change its views so that any gender transitioning or mental health procedures are not associated with any stigma or seen in a negative manner.

In fact, the language portraying procedures seeking to help a person as ‘simply not right’ undermines the message of campaigns, such as ‘Time to Change’, which aims to transform the way people think and act about biological challenges, such as in mental health.

By this argument, giving in to demands to not confront societal

problems, by seeking to sweep under the carpet real challenges while undermining the previous protection of individuals affected by these difficulties, will never end discrimination. Instead it is important to support a greater acceptance and recognition of all people (and sub-groups) as equally deserving of full human rights.

Thus, society should be more tolerant and relaxed towards differences. This means that nobody should ever consider discussing their situation with a Gender Recognition Panel as being demeaning.

Moreover, it should be emphasised that such a panel exists only to make sure that the individual wanting to transition has made a careful and informed decision while protecting him or her from any future risks such as the possibility of regretting the decision.

It may also be helpful if those sitting on the panels include supportive and sympathetic individuals who understand the plight of those seeking to transition. It could even comprise persons who have already transitioned and maybe even some who have detransitioned and reverted to their original sex. In this way, all the different factors could be carefully examined with the experience of all those on the panel.

Finally, it was concerning to note that the Scottish Government believed that “there are further reasons for changing the Gender Recognition Act 2004. One is that… the current legislation in this area is complex and needs to be simplified.” In this regard, it is not because legislation on a sensitive and difficult matter is complex that it should simply be simplified.

Dr Calum Mackellar, Director of Research of the Scottish Council on Human Bioethics