Fears Scottish plan to criminalise gender ‘fraud’ will become ‘licence to harass trans people’

Mar 09 2022
Written by Vic Parsons

Scotland's first minister Nicola Sturgeon wearing a red jacket and a black face mask

Scotland’s first minister Nicola Sturgeon. (Getty)

The Scottish government’s recently-introduced bill to reform the Gender Recognition Act includes a new criminal offence for those who apply “fraudulently”, raising concerns about how this could be interpreted.

The Gender Recognition Reform Bill (GRRB) was published on 3 March, after two public consultations found overwhelming support in Scotland for modernising and updating the process by which adult trans men and women obtain legal recognition of their gender.

Announcing the bill, the Scottish National Party (SNP) social justice secretary, Shona Robison, said: “Trans men and women are among the most stigmatised in our society and many find the current system for obtaining a Gender Recognition Certificate to be intrusive, medicalised and bureaucratic.

“This bill does not introduce any new rights for trans people. It is about simplifying and improving the process for a trans person to gain legal recognition, which has been a right for 18 years.”

She added that “support for trans rights does not conflict with” the “rights and protections that women and girls currently have”.

The claim that trans rights and women’s rights are in conflict is regularly made by anti-trans campaigners, and Robinson’s statement appears to intend to appease them.

But the Scottish Parliament has held two major public consultations on reforming the GRA in order to modernise it so that more trans people can access it, with both finding clear public support. Polling, most recently in February 2022, has also consistently shown that the majority of women in Scotland support reforming gender recognition laws to make life easier for trans people.

Despite this, the GRRB also appears to attempt to appease anti-trans activists, with a clause that makes it a statutory offence to make a “fraudulent” application – a move that has been branded by some as “a licence to harass trans people”.

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One repeated, unevidenced claim made by anti-trans campaigners who oppose reforming gender-recognition laws is that they will be abused by predatory men seeking access to vulnerable women in single-sex spaces.

However, there are dozens of countries with more modern gender recognition laws than the UK, including Ireland, Malta, Iceland and Argentina, which indicate that modernising gender recognition processes has not led to any abuse of Gender Recognition Certificates (GRC) or the gender markers on a birth certificate by cis men.

However, the Scottish government has still brought in a new clause to address the issue of “fraudulent applications”.

Under the proposed law, trans people seeking legal gender recognition would no longer need to acquire a medical diagnosis of gender dysphoria, and instead would make a legally binding declaration of their gender. They would be required to “live” in their true gender for three months before making this declaration, down from the current two-year requirement.

Acknowledging that “evidence from other countries suggest this would be extremely rare”, the government said: “The bill creates an offence of making a false statutory declaration or making a false application for gender recognition, with penalties of up to two years imprisonment and an unlimited fine.

“These penalties will provide assurances against false application though evidence from other countries suggest this would be extremely rare.”

Mallory Moore, a researcher with Trans Safety Network, a group that tracks the anti-trans hate movement in the UK, said this clause is “a license to harass trans people”.

“My hot take on the Scottish GRA reform proposals is that all these new scary things like a new offence for transitioning fraudulently are only a problem because the trans community failed to come together in one voice and demand that gender is deregulated entirely,” Moore added in a tweet.

“I am absolutely dying to know how they’re planning to police this,” added agender IT consultatn and trans activist Dr Alix Weasel. “You thought that ‘but I’m not trans enough’ was a problem for folks before, just wait until the question becomes ‘but am I trans enough to not be prosecuted’.”

Another person asked: “What does ‘transitioning fraudulently’ even mean? This is only going to be used against non-binary people with non-binary transitions and people who detransition for whatever reason imo.”

However, LGBT+ organisation in Scotland came together to praise the bill and back the government’s reforms.

Scottish Trans, Equality Network, LGBT Youth Scotland, Stonewall Scotland, and LGBT Health and Wellbeing released a statement saying they all agree that the bill’s proposed reforms “will be greatly beneficial to trans men and trans women in Scotland”.

Vic Valentine, of the Scottish Trans Alliance, added: “We welcome the proposals in this bill, that would see a massive improvement in how trans men and trans women in Scotland are able to be legally recognised as who they are.

“The current process is difficult, stressful and expensive, and it reinforces harmful stereotypes about trans people: that who we are is a mental illness, and that our choices about our bodies are not our own to choose to share with others.

“While the proposals fall far short of a law that would enable all trans people in Scotland to be legally recognised as who we are, this important step forward is one that we hope that all MSPs across the chamber can support.”

The bill’s publication was warmly welcomed by many members of the Scottish parliament, including Karen Adam, an MSP and trans ally, who tweeted a photo of herself with a giant pink, white and blue trans Pride flag along with the caption: “Today was a good day.”