The Scottish Government is in the process of introducing legislation to make it easier for people to change their legally recognized gender.
What exactly are the reforms proposed and why are they so controversial?
The Scottish Government wants to simplify and speed up the existing process by which people can obtain a gender recognition certificate – legal recognition of a trans person’s ‘acquired’ gender.
Currently, people apply to a UK gender recognition board and are typically required to provide a diagnosis of gender dysphoria.
This is defined by the NHS as a “mismatch” between their biological sex (whether they were physically born male or female) and their gender identity (the way they see and describe themselves).
Applicants must provide two medical reports, one from a specialist detailing their diagnosis and another detailing any treatments or surgeries they may have had to change their sex characteristics.
They must also prove that they have lived in their acquired gender full-time for at least two years – for example by showing that they have used a different name on official documents or have changed their gender on their driver’s license or passport – and swear an oath that they intend to continue doing so for the rest of their lives.
The Scottish Government argues that the current process is too difficult and invasive, causing distress to an already marginalized and vulnerable minority.
Her proposal would see applications processed by the Chancellor General for Scotland rather than the UK panel.
No diagnoses or medical reports would be required, and the period that applicants must have lived in their acquired sex would be reduced to three months.
However, they would still have to take an oath to remain so for life – it being a criminal offense to make a false declaration or application – and there would be a three-month “thinking period” before a certificate would be issued.
In theory, only a small number of people would be directly affected by reforms, with the NHS estimating that transgender people make up around 0.5% of the population.
Ireland made similar changes in 2015 and by 2020 had accepted an average of 115 applications per year.
But some activists are concerned that allowing them to “identify” as women could undermine the rights that women have fought for decades to secure, and which are themselves enshrined in the Equality Act.
There are also concerns about access to women-only rooms and services, including infirmaries and shelters.
While attitudes towards gender have become more fluid, many things in society are still binary – from locker rooms to elite sporting events to prisons – and some are reluctant to change that.
The relatively narrow topic of the certification process has become a focus of a broader debate about gender identity and politics. And this debate is hotly contested, especially online.
The Scottish Government has held two consultations on its plans which together have generated more than 30,000 responses.
The second, which focused on the bill, received 17,058 submissions. Analysis of these responses revealed that “a small majority of organizations were broadly in favor of moving to a system based on statutory declarations”, with around four in ten not supporting it and one in ten not having a clear position.
While responses between the two sides were quite polarized, an “area of shared concern” was identified – that debate around the issue had become “toxic” and “underpinned by a culture of social media where people are bullied and harassed by it.” will take a different perspective”.
- The dividing lines of Scottish gender laws
Despite strong feelings dominating the debate, a BBC poll found that 67% of people had not been following the issue closely.
This meant that while the responses indicated a general sympathy for trans people, there was uncertainty and hesitation about the details of the proposed changes.
In the BBC survey, too, there was a clear age split for almost all questions, with those under 35 years of age being much more likely to support reforms.
The First Minister has acknowledged that some people have “real concerns” about the plans – while noting that others have taken up the issue to spread transphobia.
However, over the years that the plans have been discussed in Scotland, she has repeatedly insisted that trans and women’s rights need not clash.
Ms Sturgeon said: “I’m a lifelong feminist, a feminist to the tips of my fingers. But I also think it’s really important that we protect and strengthen the rights of trans people, one of the most stigmatized minorities in our society.
“And I don’t think women’s rights and trans people’s rights need to be in conflict.”
The SNP leader has also taken a stand against transphobia within her own party, saying that “it’s wrong and we need to treat it with the zero tolerance that we treat with racism or homophobia”.
The Equality and Human Rights Commission – which initially backed the Scottish Government’s proposals as a “simplified system” – has now urged ministers to reconsider the plans.
Chairwoman Baroness Falkner supported the existing system in a letter to Social Justice Minister Shona Robison, saying: “The established legal concept of gender, together with the existing protections against discrimination based on gender reassignment for trans people and the opportunity for them to legal gender recognition, together create the right balanced legal framework that protects everyone.”
Several prominent SNP politicians – including Government Ministers Kate Forbes, Ash Regan and Ivan McKee – signed a letter in 2019 urging the government not to “rush” the proposals, arguing that “changing the definition of man and woman is a matter of fundamental importance”. .
Meanwhile, author JK Rowling has become one of the most prominent voices in the debate, saying reading about the Scottish Government’s proposals “triggered” them to memories of sexual assault.
Ms Rowling said her life was “shaped by being female” and argued that “erasing the concept of sex robs many of the ability to meaningfully discuss their lives”.
The Scottish Government is expected to table a bill in Holyrood on Thursday that aims to finally pass its reforms after previous attempts stalled.
While the changes are sure to be the subject of intense scrutiny and debate, it is likely that ministers will have the votes to get them through Parliament.
Some of the plans’ more prominent critics left Holyrood at the last election and the SNP now governs alongside the Scottish Greens, who strongly support them.
Scottish Labor is also in favor of reform, which in its 2021 election manifesto calls for “de-medicalizing the process” and allowing for the recognition of those who identify as neither men nor women.
And the Liberal Democrats rely on a “simple procedure based on the principle of self-determination and without intrusive medical diagnostic requirements”.
Only the Scottish Conservatives have expressed a more skeptical position, with MSP Murdo Fraser urging ministers to suspend the plans in the face of EHRC intervention and to engage in “appropriate, careful and evidence-based consideration of these issues”.
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