A requirement to live in an acquired gender for three months under proposed reforms to Scotland’s gender recognition process is “unnecessary”, MSPs have heard.
Holyrood’s Equalities, Human Rights and Civil Justice Committee took evidence from a panel on the Gender Recognition Reform (Scotland) Bill on Tuesday.
The highly controversial Bill would reduce the length of time required for a trans person to live in their acquired gender from the current two years to three months, with a subsequent three-month reflection period.
The legislation would additionally remove the need for a diagnosis of gender dysphoria ahead of an application for a gender recognition certificate (GRC), and would drop the minimum age for an application to be made from 18 to 16.
Professor Sharon Cowan, professor of feminist and queer legal studies at Edinburgh University, told the panel that the proposal of living as an acquired gender delays the registration process “in an unhelpful way”.
Prof Cowan told the committee: “Many trans people have been thinking about this not for months at a time but years, and in some cases, decades.
“The requirement to live in the acquired gender for three months seems unnecessary in terms of delay to the process.
“There is a range of ways of approaching this. International jurisdictions have taken different views on whether there should be a time delay in place or not.
“Some people have very similar requirements to the ones proposed in the Bill. Other jurisdictions such as Malta, it’s a 30-day registration, administrative process that doesn’t take very long.
“My experience with talking to and working with trans people is that they would see that as unnecessary and also delaying, in an unhelpful way, the process of registrations.”
Karon Monaghan QC, a barrister at Matrix Chambers, said she could understand why people would question the need for a three-month wait after the application is filed, but added that her concern is “less about delay and more about the threshold for qualification at all”.
“That is living in the gender to one wants to transition or acquire,” she said.
“I think the language adopted by the Equality Act is clear and certain. We know what ‘sex’ means, and for the avoidance of doubt, it’s defined, so there’s no ambiguity about that.
“The difficulty is introducing the concept of ‘gender’, which generally refers, as you know, to social attributes.”
Ms Monaghan added: “How does one live in the gender one wants to acquire? What does that mean without a medical assessment?”
She said she could understand concerns over medical diagnoses, but was concerned herself over the ability to establish that a person is living in the gender they wish to be assigned to.
The committee was told that an “objective assessment” should be considered in order to define this threshold.
Naomi Cunningham, a barrister at Outer Temple Chambers and chair of Sex Matters, said she did not “really understand what it is to live in the acquired gender”.
However, she said the three-month reflection period “has to be a good thing”, particularly for younger people who are transitioning.