Equal Recognition: Non-binary seminar, December 11th 2016

Morning Presentations

Nathan Gale, Non-binary Scotland

What do we want the ethos of the bill to be?

  • Want a bill that recognises that non-binary people are a broad and diverse community
  • Need to recognise that legal gender recognition is not an end in itself but a starting point for gaining further rights and protections
  • The campaign should leave no one behind

Specifics

  • A desire to make sure the law is intersex inclusive – particularly making sure that intersex people will not be pushed into this third category, and that we should talk to intersex activists to make sure they are happy with the direction of the campaign.
  • People want choice – around what gender marker they have
  • People want to make sure that equality and family law are amended to include non-binary people once we are legally recognised

Requirements for the process

  • The process shouldn’t be pathologising
  • It should be free
  • There should be no limits on how many times you can apply for legal gender recognition
  • It should be open to young people

Leo Siebert, NUS Scotland

  • Students can be affected in particular by the age restrictions on current gender recognition legislation
  • University campuses are often considered leaders on these kinds of liberation movements, but not all institutions are big enough to have lots of trans representation
  • Furthermore, student I.D. at almost all universities still only have the option of M/F. This is frustrating as student I.D. is often the most used piece of identification for students. It can also be really valuable for international students who may face a harder process in their country of origin for changing their name or gender.
  • Universities are still places with lots of gender segregation, i.e. in facilities – legal recognition would provide an additional push to institutions to include non-binary people.
  • Employment insecurity amongst students is also a big concern – this often makes students nervous about coming out as non-binary as they’re worried that they may lose their job. This is particularly the case as it is unclear if non-binary people are currently protected in discrimination legislation.

Naomhán O’Connor, Non-binary Northern Ireland +

  • They are pursuing legal action against the Republic of Ireland government to provide non-binary legal recognition with an X gender marker.
  • Aoife is part of their legal counsel through free legal advice – had approached TENI (Transgender Equality Network Ireland) about putting a team together after watching their campaign to get legal gender recognition and seeing that it was not going to include non-binary people.
  • Considered it to be really unfair/had a strong sense of injustice around the new Gender Recognition Act in Ireland only providing for the recognition of men and women.
  • Recognised the importance of being proactive in coming up with the answers to questions people have re: the difficulties of including non-binary people in existing legislation and services – so for example Naomhán and their team discussed what the implications would be for prisons, bathrooms etc.

Aoife McMahon, Law Library Dublin

How they have begun the case:

  • Naomhán applied to have their gender recognised through the existing application process, but as non-binary
  • This application was refused – but no information was given in the initial refusal decision about whether it was refused due to the only options being M/F, or if they were supposed to appeal the decision.
  • Naomhán has now reapplied through the same existing application process – they are expecting another refusal, in which case they will consider asking for judicial review.

Looking at whether the language of the existing bill provides for non-binary recognition – there are some contradictions.

Looking at some of the administrative routes to non-binary recognition, and where these have been applied internationally:

  • Norrie in New South Wales
  • In Oregon – simple acceptance by the Court, there was no State objection
  • Recent case in Northern Ireland
  • Australian guidelines say departments should consider whether information in records is necessary, and if not, take it out.

What are some legal arguments for non-binary recognition?

  • The Irish constitution gives rights to privacy and self-definition.
  • European Convention on Human Rights Article 8 right to privacy – if you can’t be recognised as non-binary then you don’t have that right.

Vic Valentine, Scottish Transgender Alliance

What types of law might be affected?

Equality law (reserved area)

  • In particular, Equality Act 2010 –e.g. protected characteristic of ‘sex’, and single-sex services
  • Would need to add religious exemption on employment and marriage celebration

Family law (devolved area)

  • There are already several aspects of family law that don’t work for trans people
  • i.e. a trans man with legal gender recognition who has a baby is also legally a mother
  • Plans to reform Family Law bill within this parliamentary session – the amendments needed around these aspects of law could be implemented during this process, as this area of law will already be receiving scrutiny.

Human Fertilisation and Embryology Act (reserved legislation)

  • Would not be about changing the intention of the law, just ensuring that people don’t fall between the gaps of language and assumptions

Marriage law (devolved area)

  • Legislation would only need to be amended minimally so this wording reflects the day-to-day approach of how marriages can be conducted in Scotland.
  • Religious exemptions that currently apply would be extended to cover all marriages that involve a person who is legally non-binary.

General law (both reserved and devolved)

  • Interpretation Act 1978 was passed (amongst other things) to correct historic sexism in writing legislation - this could be amended to neatly include non-binary people in legislation that is written using gendered language but which doesn’t intend to treat people differently.

Section 104 Orders

  • These allow “consequential modifications” to reserved areas of law that are affected by Acts of the Scottish Parliament – could be used for Equality Law and Human Fertilisation and Embryology Act

Lynn Welsh, Equality and Human Rights Commission

  • The Equality Act 2010 has nine protected characteristics. It is not too bad on using gendered language. There is a push to reform the gender reassignment protected characteristic to make it gender identity. At present, the sex protected characteristic protects you if you are a man or a woman. This could have non-binary added as a third category – rather like the sexual orientation protected characteristic has three categories: heterosexual, lesbian/gay, and bisexual.
  • The pregnancy protected characteristic does not specify that it applies only to women, so it should already protect pregnant men from pregnancy discrimination.
  • The equal pay provisions talk about two sexes, so would need amendment as a result of non-binary recognition.
  • The non-discrimination right in the European Convention on Human Rights (article 14), which protects from discrimination in the application of the other Convention rights, includes, in the list of protected grounds, the catch-all “or other status”, which is already widely interpreted.

Carolynn Gray – Lecturer in Law, University of West Scotland

  • In family law there are many gendered provisions about the ways people interact. For example, who has parental responsibilities and rights? We should consider whether the gender differences are justified.
  • The starting point is that non-binary identities are as important to non-binary people as binary identities are to binary people.
  • Some examples of the gendered provisions are:
  • Mother and father – there are different legal consequences – do we need the differences?
  • Parentage: The law on parentage is gendered , but non-binary people could be fitted in. The Human Fertilisation and Embryology Act 2008 talks about mother, father and legal parent, so has widened the concept of parenthood.
  • Parental responsibilities and rights
  • Birth registration
  • Aliment (financial provision)
  • Marriage
  • Matrimonial Homes (Family Protection) (Scotland) Act: Section 18 (occupancy rights in the case of a cohabiting couple)
  • Succession (Scotland) Act 1964

Afternoon Workshops

Academic and legal discussions – Group One

Topics covered in this session were:

  • How non-binary legal recognition would impact on the Equality Act 2010, and what may have to change
  • What lessons could be learnt from the passing of the Gender Identity, Gender Expression and Sex Characteristics Act in Malta
  • The impact of non-binary legal recognition on women’s equality (e.g. 50:50 campaign)
  • What to call the third new category on documentation and in the legislation
  • How self-declaration and the new process should work

Academic and Legal Discussions – Group Two

Topics covered in this session were:

  • Family law
  • The role of section 104 orders in dealing with consequences of the new legislation
  • Equality law jurisdiction
  • Cross-border issues that may arise from the new legislation
  • NHS (e.g. CHI numbers and single-sex wards)
  • Schools
  • The impact of non-binary recognition on women’s equality (e.g. 50:50 campaign)
  • Prisons
  • How non-binary legal recognition would impact on the Equality Act 2010, and what may have to change
  • Possible changes needed to section 22 of Gender Recognition Act 2004 (confidentiality rule)

Non-binary activism workshop

Topics covered in this session were:

  • What gender marker and information people wanted to go on birth certificates for non-binary people
  • What information and ideas did people want included in Scottish Transgender Alliance’s policy document about non-binary legal recognition
  • Concerns people had about the campaign – e.g. that binary trans people and intersex people should not be forced to use a new marker
  • Whether being legally non-binary would prevent travel to certain countries
  • Participants raised concerns about the way Gender Identity Clinics treat non-binary patients