Should it be possible for any person to change their legal sex based on their gender identity? And if so, what should be the lower age limit for self-declaration?
And should young people (below the age of 18) who self-declare be deemed competent to give informed consent to medical treatment for gender reassignment?
These two questions are currently under review in the UK.
Gender Recognition Reform
Just before Christmas, the Scottish Government opened a consultation on the Gender Recognition Reform (Scotland) Bill. ‘To comply with international human rights law,’ the consultation website says, ‘Scotland must have a system for obtaining legal gender recognition. The current system is viewed by many applicants, or would-be applicants, as demeaning, lengthy, and stressful.… Since 2004, trans people across the UK have had the right to legally change their gender through applying for a Gender Recognition Certificate… What the Scottish Government is proposing is to amend the way in which a trans person can obtain that Certificate.’
A post on the Transgender Trend website explains:
The draft Bill would establish the criteria for legal status of sex as a matter of simple self-declaration of ‘gender identity.’ If passed, the bill would erode the material, biological basis for the protected characteristic ‘sex’, which would affect the associated rights and protections of women and girls as the female sex. It would change the legal and cultural definition of ‘woman’ from a person who is of the female sex to a person of either sex who has an internal feeling of being a woman – which presumably would exclude women who experience no such womanly feeling.
The Scottish draft Bill is a proposal which would allow any person to gain legal status as the opposite sex for whatever reason or motive, based only on their self-declared identity which no-one else would have the right to question. To be clear, any man who says he’s a woman may be issued with a new birth certificate to say that he was born female. Although the draft Bill states that false declaration would be a criminal act, the reality is that a law based on self-declaration contains no mechanism by which one person’s inner feelings may be assessed as ‘true’ and another person’s as ‘false’. (Emphasis added.)
The proposed Bill doesn’t stop there, however:
The draft Gender Recognition Reform (Scotland) Bill, would, if enacted, introduce reformed arrangements for trans people aged 16 and over … to apply for legal gender recognition…. This is in line with the age at which children and young people acquire a number of rights.
As Transgender Trend points out, though, 16-year-olds in Scotland are not allowed to ‘buy cigarettes, get a tattoo, see, rent or buy any film, place a bet or buy alcohol or consume alcohol in a bar’. Yet having self-identified as a different gender, they would presumably be deemed capable of giving informed consent to the administration of hormone treatments and surgeries that would affect the rest of their lives.
The government would be affirming the identity of a teenage girl who is likely to go on to take testosterone and undergo double mastectomy on the basis of that identity. The Scottish government does not consider the possible reasons why so many adolescent girls are taking this pathway and laws should not be changed while we have such inadequate understanding. This is a decision with lifelong consequences and the government must consider the potential harms.
These proposals would have a significant impact on all professionals working with children and adolescents, including teachers, clinicians, doctors and counsellors.
The Transgender Trend post is thorough and helpful and is worth reading in detail. The consultation is open until 17 March 2020, and anyone can respond to it. As Transgender Trend point out: ‘This Bill, if passed, would put pressure on Westminster to follow suit, so it is important for women and children not only in Scotland but throughout the whole of the UK.’
Gender-reassignment treatment for adolescents
Meanwhile, in England, papers will be filed at the High Court this week in what The Guardian describes as, ‘A landmark test case to establish whether children can give informed consent to medical treatment for gender reassignment’.
Lawyers acting for Susan Evans, a former psychiatric nurse at the Tavistock and Portman NHS foundation trust, which runs the UK’s only NHS gender identity development service (Gids), and ‘Mrs A’, the mother of an autistic 15-year-old girl who is on the Gids waiting list, will file papers to commence proceedings in a judicial review brought against the trust and NHS England.
Paul Conrathe, the solicitor representing Evans and Mrs A, says:
‘The issue is whether the young person is of sufficient maturity and capacity to understand the consequences of their actions. We say it is a leap too far to think that [the 1983 consent case brought by Victoria Gillick] as a judgment could apply to this type of scenario, where a young person is being offered a treatment with lifelong consequences when they are at a stage of emotional and mental vulnerability. It simply doesn’t compute, and therefore whatever medical professionals say consent is not valid in law.’
Providing this treatment – puberty blocking and cross-sex hormones – to any young person who wants them requires, [Conrathe] argues, ‘a specific order of the court on a case-by-case basis. [The treatment] cannot be delivered as a matter of general approach’.
More details are available about the background to Mrs Evans’s case on the Medscape website.
CMF will continue to watch this case and will provide suggestions on how to respond to the Scotland consultation in due course. In the meantime, please pray: for wisdom for the judges and parliamentarians involved in these two test cases; that God’s hand of protection will be on the many vulnerable people who are affected by the current changes in law and attitude around gender identity; and for doctors, nurses, psychiatrists and other professionals involved in helping their patients to receive appropriate care in a very challenging climate.