Difficulties could be created if Scotland alone in the UK forges ahead with a new system for legal recognition of acquired gender, the Faculty of Advocates has suggested.
The Scottish government is looking to introduce a self-declaration system for legal gender recognition, removing the need for applicants to produce medical evidence or evidence that they have lived in their acquired gender for a defined period.
Although it is now more than two years since a Westminster committee called for reform of the UK-wide Gender Recognition Act 2004, it is unclear what is planned outside Scotland.
In a response to a consultation on the Scottish government’s proposals, the Faculty said: “It will be important to any transgender person to ensure that his or her status is consistently recognised, at least within the United Kingdom. It is not yet clear whether proposals for self-identification are being taken forward elsewhere in the United Kingdom.
“The Scottish Government acknowledges that certain aspects of identity are reserved matters. A passport and a driving licence in one gender, but Scottish recognition in another, will cause difficulties for the person concerned and for others who rely on such documents for identification purposes.
“It may be considered desirable that there is consistency among the jurisdictions of the UK in relation to gender recognition.”
The proposals also intend to lower the minimum age of applicants from 18 to 16, and while the Faculty supports the change, it favours the availability of a “straightforward” reversal process up to the age of 21.
In relation to children under 16, the Faculty would want applications to be made through the courts.
“We consider that in the case of a child aged under 16, independent scrutiny is appropriate and that the courts are best placed to deal with this issue…any assessment of the application would be governed by the child’s welfare as the paramount consideration,” said the Faculty.