Transgender Consultation Response

21 Feb 2020

My overall response to the consultation would be that I remain unconvinced that reform such as that proposed is required. I will primarily respond by commenting on particular points within Chapters 2 and 3 of the Government consultation (shown in italics).

Chapter 2: Origins of the Gender Recognition Act 2004

2.12 The European Court of Human Rights continues to consider cases relating to gender recognition:

  • An irreversible change in appearance is not required;
  • A requirement to demonstrate the existence of a gender identity disorder is not a violation of Article 8.

If gender dysphoria is an objective reality, then presumably it can be objectively assessed by medical professionals or other suitably qualified individuals.  However, if it is purely a subjective feeling, then it cannot and should not be assessed by third parties.

  • A requirement to undergo a medical examination is not a violation of Article 8.

If a person breaks a leg, has cancer, or is pregnant, it is normal to have medical professionals examine us, make a diagnosis, and recommend various options going forward.  Why not the same with gender dysphoria?

2.13  Scotland must comply with ECHR.  The current system in Scotland is compliant with ECHR.  There is no ECHR obligation on Scotland to introduce a system for obtaining gender recognition based on an applicant’s statutory declaration.

While it is possible to imagine a situation where the ECHR makes a legally right but morally wrong ruling on a subject, I accept it is desirable to be ECHR compliant as much as possible.  Therefore, although there might be arguments for further restricting the present system, I am not arguing for this.  However, given that the present system is compliant, we should be wary about changing it.  The trans community is not united in its view of the present system or of the best way ahead.  Some trans people support the present system and want it to remain.  They consider that the present system treats gender dysphoria seriously and correctly requires those considering transitioning to go through a fairly thorough process.

2.14  International Best Practice.  This phrase is used a number of times and the assumption of the proponents of the Bill seems to be that their proposals match international best practice.  However, it is a question of judgement what international best practice actually is.  For example, there is sometimes an assumption that present day society is more enlightened than previous societies (chronological snobbery) without much evidence to support this.  Similarly there can be an assumption that the values of modern Western society are superior to the values of society in Africa or Asia.  While it is true that many technological advances in the last 200 years have come from Europe and the West, it is a big jump in logic to assume that this means the West is morally superior.

 One of the reasons given for a change to a statutory declaration based system is “international developments”.  While I absolutely agree we should learn from other countries and their experiences, Scotland should be prepared to go its own way if that is justified.  Following the crowd has its appeal for both individuals and nations, however, this way of thinking is as likely to lead to wrong decisions as to right ones.

Chapter 3: The Case for Reforming GRA

3.17  Statutory Declarations.

There seems to be a slightly naïve assumption that people do not normally lie under oath (‘It is an existing offence to make a false statutory declaration’).  Yet, we know that many witnesses in courts give conflicting evidence under oath.  So we know that in fact many people do regularly lie under oath.  This does not in itself mean we should not use statutory declarations, but we should be realistic about how reliable they are likely to be. A question also arises over one’s ability to change gender more than once, something the draft bill does not address. The draft Bill’s strong focus on the strength of statutory declarations does at least raise this as a point of discussion.

3.18  ‘The Scottish Government is not changing any rights, responsibilities, or protections…’  On the surface this appears to be true.  However, there is a more fundamental underlying question.  Societies for centuries have worked on the assumption that the vast majority of people and animals are clearly either male or female at birth and this cannot be changed.  Science largely agrees with this view.  It can also certainly be accepted that in most societies in the past – and many still in the present – males have abused their position and females have lost out.  We must continue to address this as a matter of extreme urgency.  However, to shift to a position whereby being male or female is a matter of choice based on preference with no third party assessment is a fundamental change in the way society works.  I accept that this is being done with the good intentions of helping a few individuals who are confused about their gender and would prefer to be the other sex.  But is there a danger that we are going against science and only confusing the majority of the population?

There is also the concern that the changes proposed may weaken protection for women and their rights.  Examples include women’s changing rooms and women only refuges which are intended to give a safe space to survivors of abuse.  This concern is heightened if young girls in a changing room can be visited by someone who has all the male physical attributes.

Equal pay claims (usually for women) may be harder to achieve if it is less clear whether the comparator is or is not a male.

3.19  The Government claims that the present 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.

This is a slightly strange logic!  Normally medical diagnosis (for physical or mental health issues) is considered a good thing.  Is the argument here that it is purely subjective and cannot be diagnosed?  Many people’s ‘life circumstances’ are considered by many people, including at birth, for marriage or civil partnership, at death, etc., etc.

3.20  The Scottish Government considers it ‘not right’ for people to go through procedures which are ‘demeaning, intrusive, distressing and stressful’.  I am sure we would all agree with that.  However, these four words themselves are somewhat subjective and different people are likely to find different things intrusive or stressful.  As a comparison, many pregnant women would have to undergo procedures and examinations which could be considered intrusive and stressful.  But these procedures are considered good rather than bad because they are aimed at obtaining the best possible outcome for both mother and baby.  By the same logic, the fact that some people feel a procedure to be intrusive and stressful does not mean it does more harm than good.

3.21  I have no problem if the present legislation needs to be simplified.  But that is not the same thing as changing it as fundamentally as is proposed.

General points from those who agreed with reform. The 2017 consultation had 15,532 responses from individuals and 165 responses from groups and organisations. However, of the respondents, only 49% reside in Scotland and 60% is the figure given for those agreeing with the Governments self-declaratory system for legal gender recognition. Given that those who are likely to respond to a consultation are those who are directly impacted by it and that only 60% of responses are in favour of reform, this consultation’s results do not necessarily reflect the views of the country on this issue.

3.24  ‘Gender identity is a personal matter’ and individuals ‘know their own mind’.  Is that the case?  Biological sex at birth is not only a personal matter; it is also a matter of scientific fact.  I fully accept that gender stereotypes are societal matters and often unhealthy.  But that is not to say that the actual sex or gender of a person has been wrongly assigned at birth.

Many people do not know their own mind.  We often do not assess ourselves objectively, e.g. many think of themselves more negatively or more positively than is actually the case.  And fairly large numbers of us suffer from mental ill health at some point in our lives.  Therefore, it seems to me that some form of third party assessment could be very helpful for an individual from making too hasty a step which they might later regret.

The existing process ‘takes too long, is too difficult or too expensive’.  Yet some trans people argue that the present process should remain.  Changing gender (or sex) is such a major and serious matter that it surely should not be too easy or too quick?  However, I certainly do agree it should not be too expensive.

3.26  It was suggested that the present system contributes to mental ill health.  It is true that mental ill health is often found in people who are hoping to transition or have transitioned.  However, this may be linked to a deeper dissatisfaction with who they feel they are and may not be directly linked to which sex or gender they actually are.

3.27    However, I do not think that is an argument against having psychiatric assessment or a diagnosis of gender dysphoria.  If gender dysphoria is an objectively verifiable condition, surely it is helpful to have it diagnosed.

3.28  I am more than happy to support attempts to reduce waiting times, improve GP education, etc.

3.35  The World Health Organisation (WHO) International Classification of Diseases (ICD) now classifies gender identity disorders as ‘Conditions related to sexual health’.

Again this seems an argument in favour of medical assessment rather than self-declaration.

ADDITIONAL POINTS

I do think we need to get a right balance in all this.  I agree that it is important not to have an overly arduous process which renders the possibility of transitioning impossible but the process should equally respect the seriousness of a change of sex/gender.

I have deliberately not argued from a religious point of view.  However, it is worth noting that Christians (and potentially those of other faiths) believe that God created us male and female, e.g. Jesus teaching at Matthew 19:4 referring to the Jewish scriptures.  Therefore, there is an issue for freedom of speech, as to whether someone can call a person a man because they were born male, even if that person prefers to be called a woman.

There is too a question of what a birth certificate is intended to be.  Most information on a birth certificate is factual and verifiable, e.g. place of birth, date of birth, one or two parents’ names.  I would argue also that the sex of the baby is normally discovered at birth, it is not assigned.  Therefore, if the fact of biological sex can be changed at a later date, what is to stop all the other information being changed?

Question 1

Yes.

3 months seems a very short time.  Young people take 2 or 3 years at secondary school to prepare for a university course.  Many people get engaged and wait a year or more before getting married.  It could be argued that applying for a Gender Recognition Certificate is more serious than either of these.  Therefore, I would suggest that the current 2 years requirement is not unreasonable.

Question 2

Yes

Broadly the same answer as for Question 1.  3 months seems a very short period.  However, I am not arguing for the present system to become more restrictive so I would accept the period living in the acquired gender and the period of reflection combined should be two years.

Question 3

No

Continuing my previous line or argument, this is a very serious decision and potentially more serious than other decisions that young people aged 16 make.  Therefore, I would support keeping the age at 18.

Question 5

No

S5M-20346: Growing Tensions in the Middle East

08 Jan 2020

That the Parliament expresses its concern regarding the risk of increased violence in the Middle East following the assassination by the US of the Iranian, Qasem Soleimani, near Baghdad airport; acknowledges the recent escalation of violence, with Iran’s first direct act of aggression towards the US since 1979 coming in the form of ballistic missile attacks on two bases in Iraq that house US and coalition troops; questions whether the assassination of Soleimani can legitimately be considered defensive; considers that the US being a Western, mainly white, English-speaking country does not offer grounds for Scotland and the UK to automatically support it; recognises the long-term tensions in the Middle East; believes that only through serious peace talks with no pre-conditions can there be long-term peace, and considers that such talks must include representatives of the US, Iran, Saudi Arabia, Israel, Palestine, Egypt, Russia and the EU.

Motion S5M-20229: Child Obesity and Deprivation

18 Dec 2019

That the Parliament understands from a recent Information Services Division (ISD) report that child obesity figures hardly changed between 2001-02 and 2018, with 10.1% of five-year-olds being obese 17 years ago, compared with 10.2% last year; considers, however, that these figures mask a widening health inequality between five-year-old children living in the most deprived 20% of the population and those from the most affluent backgrounds; understands that, for the most deprived 20% of the population, the obesity rate for five-year-old children is 13.7%, while, for those from the most affluent backgrounds, this rate is 6.5%; believes that, in 2001-02, the difference in obesity for this age group between these two populations was only 0.2%; considers that a widening gap of obesity rates between wealthy and deprived areas is a cause for serious concern in the Glasgow Shettleston constituency, which contains some of Scotland’s most deprived areas, and notes the view that action must be taken, not only to reduce obesity levels but also to reduce the widening health inequalities experienced by young people.

Motion S5M-17960: No Need for an Edinburgh Mayor

26 Jun 2019

That the Parliament notes the call for Edinburgh to have an elected mayor; believes that concentrating power in the hands of a single individual is less democratic and more dangerous than the current system of distributed power, which allows for greater inclusivity; considers that there are significant drawbacks to having an elected mayor as a form of governance; believes that this can be seen by the limited number of democratic developed countries that operate a fully presidential-style system at the national level, and considers that it is not always in Scotland’s best interests to merely replicate political changes occurring in England.