GRC changes dropped?

[WishThisWasLangClegGin]

www.thetimes.co.uk/article/d19ad4fe-54d9-11ea-a869-24971f770bf3?shareToken

Bloody hell if that's true, that's fantastic!

Sarah thank you for the link to Mermaids’ written evidence to select committee. It is so disturbing that such extreme anti-safeguarding, politically authoritarian ideas can be promoted to Parliament by a self-described representative organisation that so many mainstream companies and the public donate to. I had to pause a few times reading it because i couldn’t believe it.

The first point on human rights is what human right would you claim against?

Are there actual claims right now where a trans person uses the ECHR to assert that they get the benefit of a protected characteristic?

Good news but doesn't matter: the Scottish proposals will allow anyone to change their legal sex in Scotland.

The draft bill says you have to be 'ordinarily resident' in Scotland but that isn't defined and it's only defined elsewhere as a stated intention.

Come up to see the Edinburgh Fringe and change your sex.

I think there was a Sunday Times piece about this aspect a few weeks ago?

Found it:

www.thetimes.co.uk/article/scottish-legal-move-could-create-a-transgender-gretna-green-rrsxd8sd8

Yes; that’s the obvious point. But it can’t be that Scotland can legislate for England and Wales. It can’t and doesn’t have the power to do so.

You will then have trans people being able to self ID there but not in England.

So basically, this is useless if you don’t ordinarily live in Scotland. To get the benefit of self ID it must be recognised in law where you live.

Scotland can’t bind England and Wales. So yes, you will have a weird situation where it’s possible to self ID in Glasgow but in Nottingham, you will still be male.

So basically, this is useless if you don’t ordinarily live in Scotland. To get the benefit of self ID it must be recognised in law where you live.

In terms of getting a new birth certificate, I think it will be useless if you weren't born in Scotland, since birth registrations in Scotland are separate from England and Wales. For those who weren't born in Scotland there would need to be an agreement with the UK government that a Scottish GRC could be used to change birth certificates in England and Wales (I'm not sure where NI fits into this, but I think it is also separate from England and Wales in this respect).

LexMitior if the Scottish GRA reform goes ahead it means that people can change the sex on their birth certificate easily and it will only take six months.

As far as I'm aware, birth certificates issued in Scotland are recognised as valid elsewhere in the UK, so I don't see why a trans person would not be accepted into single sex spaces in England and Wales if their birth certificate says Female even if every aspect of them is still obviously Male.

Ah that's for clarifying that OldCrone.

No I’m afraid that this won’t happen because that would be an instance of where Scotland would be changing how the law operated on a fundamental level in England and Wales. There the law would still be no self ID, and a birth certificate issued in Scotland (which it would have to be, I think) would not be sufficient to say, I am a woman and I get access to these services in England and Wales.

They can’t do that alone, they don’t have the power to do so in terms of the devolution settlement.

Scotland can set what laws it likes for Scotland (within limits). But it can’t makes law that affects the operation of what happens in England and Wales. If Self ID is not recognised there, this is useless. All that Scotland will have done is make its birth certificate different from every other part of the country.

This is more about the limits of power of the Scottish Government.

Thanks very much for the Scottish link I had not at all been paying enough attention on this so I am posting in ignorance, apologies. I agree with what Nonny said. This new thing will be like the Scottish pound note, having currency in the rest of the UK because of widespread regulatory capture, ‘getting ahead of the law’ and general wokeness.

From the Times:

‘A Gender Recognition Reform Bill would reduce the age of eligibility from 18 to 16, cut the time required to live in their new gender from two years to six months and remove the need for medical treatment or a diagnosis of gender dysphoria.

It is open to people born in Scotland, including an estimated 720,000 now living elsewhere in the United Kingdom, and people from the rest of the UK living, working and studying in Scotland.’

I guess how many UK 16 year olds could get this new Scottish GRC depends on how they define residency in Scotland requirements in this new law. What if ‘residency’ can be just an address of a hotel in Scotland?
I haven’t looked at the consultation yet but hopefully this is properly set out in there.

Either way this has very obviously very serious potential to undermine women’s rights in Scotland (and UK-wide because if implemented, people will point to the disparity of it and agitate for the whole of the UK’s law to be changed to make it consistent with Scotland.)

Does anyone know why is this a devolved issue to the Scottish Parliament anyway, though? Health issues generally aren’t (like abortion) I thought they are reserved UK Parliament issues? So what area of law does the GRA come under that each UK parliament can go off and make its own laws on it?

Surely something as socially fundamental as changing GRC law either way should be changed only by the (Westminster) UK Parliament on a UK-wide basis with UK wide consultation. It will undoubtedly have UK wide impact if Scotland do their own thing on this.

There is a copy and paste below to fill in the Scottish government consultation which closes soon.

You don’t have to be Scottish to fill it in

www.snpwomenspledge.com/

There the law would still be no self ID, and a birth certificate issued in Scotland (which it would have to be, I think) would not be sufficient to say, I am a woman and I get access to these services in England and Wales.

But if you were born in Scotland, your birth certificate counts as a UK birth certificate for e.g. getting a UK passport, so a Scottish birth certificate is valid in the rest of the UK. A person with a Scottish birth certificate can access services in the rest of the UK in the same way as someone with an English birth certificate.

Scotland can set what laws it likes for Scotland (within limits). But it can’t makes law that affects the operation of what happens in England and Wales. If Self ID is not recognised there, this is useless. All that Scotland will have done is make its birth certificate different from every other part of the country.

It will affect what happens in England and Wales because anyone whose birth was registered in Scotland will be able to change their sex marker, but people whose birth was registered elsewhere in the UK will not (unless the UK government decides to recognise Scottish GRCs).

It is a devolved issue because it comes under Scots law, which is separate to English law, I presume, just as the Scottish Registrar General is separate to the English one. And historically, and still, there have been differences in Scots and English law regarding marriage, divorce and birth registration. It is nothing to do with devolution, these differences predate 1997.

So for example, you do not need parental consent to get married in Scotland in 16, but you do in England and Wales, hence the historical phenomenon of Gretna Green marriages.

This is properly a matter of Scottish legal policy, and it is not the first time there will have been or are anomalies between English and Scots law.

I do not agree with self-ID by the way, I was just answering ChattyLions question about why the Scottish government was able to exercise jurisdiction on this.

The criteria for securing a GRC will differ between Scotland and rUK but the effects of holding a GRC and changing your legal sex (and your birth certificate) will be the same wherever you are in the UK.

Which is why everyone in the UK is justified in responding.

People really need to understand this!

I think the point is that it will not be effective unless there is agreement between England and Wales and Scotland to make this agreed across the UK.

A lot of these posts assume that Scotland do this by itself. If it affects any aspect of what is reserved to Westminster, they can’t.

I don’t want to upset people who are pro SNP or devolution. But they are a lot less powerful than you think.

In its legal effect, it would have to be clear it is confined to Scotland in its effects. I would agree that this issue should be raised with MPs etc in England and Wales to flush it out - but having done that to ensure that this works correctly only for Scotland, this is all very normal. We have lots of different laws between Scotland and England and Wales. That shouldn’t be a surprise - it’s why the SNP want devolution

Just reading that Mermaids evidence, thank you @SarahTancredi

"Parents have reported GIDS staff presenting non-evidence based opinions during clinical sessions. This includes unproven ideas of gender identity development (rejecting the validity of trans people, looking for causes of gender diversity), mis-gendering of trans children, telling parents that support for trans children is harmful (when mainstream medical consensus states the opposite) and telling a socially transitioned trans girl they can ‘never be a real woman’. This unethical and non-evidence-based practice contributes to trauma and Mermaids suggests is unacceptable within today’s healthcare system."

I'd be more worried if they told male patients that they will turn into a real woman. Because that would be a lie.

I do not understand why you think Scotland cannot pass this law Lex - as I say, Scotland has an entirely separate family law to England. The Gender Recognition Bill is under the auspices of the family law section of the Scottish government. Scots marriage law is different to England and theoretically effects English people if their 16 year olds hop over the border to get married - and yet that differences has persisted for centuries.

It’s devolution. The effect you describe was there before 1998 with respect to marriage.

But there is no blanket provision now that allows for Scottish legal provisions to be accepted across the UK. And this change would be very unlikely to be agreed.

Devolution works because Scotland has certain powers to legislate for its own purposes. But it cannot make effective law that changes how the law in other parts of the UK will operate. Self ID is not going to be UK wide by the back door.

Is that true though? Scots laws are passed in and for Scotland. Surely it is then up to Westminster to say that the Scottish GRC will not be valid in England and Wales, not for Westminster to stop Scotland passing the law in Scotland.

Thank you Katy for your posts.

Going back to looking for examples of human rights-based justifications for countries being required to provide a legal mechanism for people to change legal sex..

(I get it that in the UK in 2004 this was done to avoid discriminating against trans people in the UK because it was a time when for example same sex marriage was not legal, and when there were different retirement ages between the sexes. Now these issues are resolved and are not issues of discrimination any more... I wonder is there any reason we still have the GRA..?)

Could any lawyers around, say if there is an established human rights necessity for the UK to keep the GRA? (Or necessitating any country under EConventionHR to begin provide it, if they don’t already have something like this?)

I am wondering if there is any such requirement to provide a mechanism to legally change sex, then what happens in ECHR countries that do not offer this? Has this human right necessity ever actually been determined?

and surely if it had been established as a human right under ECHR, then why would this legal change human right only be necessary with sex?-why would there not also be a requirement to offer a legal change system around people’s age, race, disability or any other characteristic?

Lex I think you asked for examples of where a human rights basis for requiring a state to have a GRA has been claimed.

Here’s one, from the Ministerial Foreword introduction to the consultation in Scotland on their GRA reform. The minister doesn’t offer any basis to justify it though:

’To comply with international human rights law, Scotland must have a system for obtaining legal gender recognition. Since 2004, trans people across the UK have had the right to legally change their gender through applying for a Gender Recognition Certificate.’

www.gov.scot/publications/gender-recognition-reform-scotland-bill-consultation-scottish-government/

Can any lawyers comment on what is this ‘international human rights law’ referred to?

Is it real, or is it Stonelaw? (In which case shouldn’t a minister be using proper legal justification in a formal consultation like this?) or is it a comment on the legal situation in the UK in 2004, while ignoring that the discriminatory situation eg on same sex marriage, has been (quite rightly) legally reformed since that time?

Sorry I meant to say ‘pre-2004’ not ‘in 2004’

Please fill it in

www.snpwomenspledge.com/

That’s a link to fill in Scottish consultation on self id ☝️