By Oceana Maund

Trans people are people. We have jobs, lives, families, hopes, dreams and aspirations just like everyone else. We have often been subject to misrepresentation, discrimination and prejudice in certain sections of the media, but recently these attacks have intensified and have become more public due to an important piece of proposed progressive legislative reform by the Scottish Government to the Gender Recognition Act, which was recently the subject of a public consultation.

The Gender Recognition Act 2004, introduced in the UK in 2005, set out a process by which trans people could change the gender recorded on their birth certificate. It was initially passed UK-wide with the agreement of the Scottish Parliament. However, birth certificates are devolved to the Scottish Parliament, and the different UK jurisdictions are now reforming the law separately.

For over half a century, trans people in Scotland have been able to easily change their passports, driving licences, and medical and employment records to reflect the gender of their lived reality. However, before the UK lost a European Court of Human Rights case in 2002, UK civil servants maintained that birth certificates were just historical records rather than proof of current identity, and therefore did not need to be updated when a trans person transitioned. The European Court determined that refusing to change a trans person’s birth certificate violated their right to privacy of their gender history, as well as their right to marry in their gender identity.

Back in 2004, the Gender Recognition Act was a regarded as a groundbreaking piece of legislation because it does not require trans people to undergo sterilisation or surgery to change their birth certificate. However, under the current process, you have to apply to a judicial tribunal (the Gender Recognition Panel) who never meet you, but make a judgment about whether you are who you say you are. The evidence required includes having to submit a psychiatric diagnosis of gender dysphoria, reinforcing the idea that to be trans is to be mentally unwell. It also requires you to submit detailed medical reports, and two years’ worth of evidence that you’ve been living as you say you have been. There is a £140 fee to apply along with the cost of the medical reports you must include – so applications can run to as much as £250.

Trans people’s experience of navigating the faceless Gender Recognition Panel process is complex, pedantic, humiliating, expensive and frustrating to the extent that most eligible trans people end up leaving their birth certificate unchanged. This places them at risk of red tape nightmares such as invalid car and travel insurance policies, errors calculating their pensions, and having their previous name and gender outed when starting work or buying a home.

Before I continue, let’s make something absolutely clear.

The Gender Recognition Act is very limited in what it does. Firstly, it gives trans people the right to an amended birth certificate legally recognising the gender identity in which they live. It also provides privacy protection for trans people. Once a trans person has had their gender legally recognised, it becomes a criminal offence to share details of their history with others if you learn these in an official capacity. There are some sensible exemptions to these privacy protections, such as when investigating a crime, or in a medical emergency. What it doesn’t do is affect how and when trans people can use single-sex services, such as public toilets, changing rooms, or women-only refuges. It doesn’t impact what counts as a hate crime. Reforming the Gender Recognition Act does not change the meaning of the words “woman” and “man”.

The reforms in question are fairly simple: primarily it would see trans people able to “self-declare” their gender, rather than have to go through the current bureaucracy; it would bring the age at which a trans person can legally “self-declare” to 16; and it would give legal recognition to those who identify as “non-binary” – neither male nor female.

Despite how narrow the proposed reforms to the Gender Recognition Act are, some people are using the proposals as an opportunity to debate the validity of trans identities, and to argue for a rollback of hard-fought trans rights. On Twitter and some other online forums, some opponents of trans rights are vociferously campaigning not just against Gender Recognition Act reform but for bathroom bans – similar to those proposed by hardline Republicans in the USA – and Section 28-style restrictions on supporting trans pupils. They are encouraging society to fear trans people.

While this pushback against trans rights is mainly taking place in England, the borderless nature of social media means that some of that negativity is affecting Scotland. Although the Gender Recognition Act is currently UK-wide, the Scottish Government is reforming it at Holyrood. It is vital that we ensure that the English anti-trans campaigning and media coverage doesn’t derail the much more constructive conversations we are having here.

Resistance to trans equality progress is not surprising; gender is an emotive subject for everyone, not just trans people. It permeates almost every aspect of our lives and constitutes an integral part of our identities and how we see ourselves as human beings.

The last few years in Scotland have seen a growing public awareness and understanding of some of the issues and challenges faced by trans women, trans men and non-binary trans people. This has, at least in some part, been influenced by a gradual improvement in the way we are represented in the mainstream media. Sadly, some of the UK media coverage over the last six months has interrupted this upward trajectory and provoked a distressing media storm that has been inescapable for those of us who are connected to or part of the trans community. It is clear from the distressed Facebook posts of many of my friends that the weight which this is placing on the shoulders of a group that already suffers high levels of discrimination, stigma and hate crime is growing far too heavy. The sheer volume of anti-trans coverage being generated at the moment and the fact that most of it has little or nothing to do with what the reforms set out to achieve, makes me question the fundamental motives of those generating it.

The Scottish Government launched a consultation on possible reform of the Gender Recognition Act, looking at three key areas. The first, and arguably most misrepresented, is that of the move from the current highly medicalised, deeply intrusive and complex process, to change the legal gender on your birth certificate, to one of self-declaration.

What this reform proposes is that the process should be as straightforward as changing any of your other identity documents. Crucially, “straightforward” does not mean flippantly or without thought, as the proposals would still require individuals to sign a legal statutory declaration oath confirming the gender identity in which they are living and their honest intent to remain doing so until death. Intentionally making a false statutory declaration is a criminal offence punishable by imprisonment.

Much of the negative response to self- declaration is framed around public concerns about access to single-sex services or spaces, such as false claims made that changes to this law will allow predatory men into women’s toilets and changing rooms. A less complex process for trans people to change their birth certificates, which is what the reform is designed to do, is not going to have any impact on single-sex spaces.

The way all people, including trans people, are able to use services and facilities is stipulated in the Equality Act 2010. Under this law, trans people are protected from discrimination regardless of whether they have changed their birth certificates or not, including protecting us from discrimination in allowing us access to the single-sex spaces that match our identities, rather than matching the gender that may be recorded on our birth certificates. Reform of the Gender Recognition Act will not change any of the provisions under the Equality Act, including the existing special rules for single-sex services that allow a trans person to be treated differently if their particular circumstances make that necessary and enabling biological sex characteristics to be taken into account where required. For example, sports bodies will continue to be able to set their own transgender rules in order to ensure safe and fair competition. Exemptions exist so gender recognition doesn’t affect sexual offence prosecutions. Prisons do careful risk assessments of trans prisoners and can hold people who are legally female in the male prison estate if required for the safety of all prisoners.

In all of my 51 years I have never been asked for my birth certificate when using any single-sex service, let alone a public toilet. The “toilet debate” is the bane of many trans people’s lives. It may come as a surprise to you but just about the last thing I want to do as a visible trans person is use a public toilet. In fact, for many years the fear of doing so was so strong it prevented me from going to any sort of public event or space at all.

I am not trying to make light of these concerns. In fact, I am vigilant about safety in public spaces. The combination of being physically assaulted in public on two previous occasions and the fact that I am a single parent with a teenage daughter means I am probably more concerned than most. In Scotland, the law means that anyone found using public toilets or changing rooms for nefarious purposes, regardless of what they are wearing or what is between their legs, will rightly face prosecution and severe penalty. To claim that trans women are likely to use toilets and changing rooms for anything other than the designed purpose demonises an already misrepresented minority.

Given so many false claims in the media that reforms to the Gender Recognition Act will lead to criminal and predatory men gaining access to women-only spaces, I appreciate why some people might worry about how trans people’s rights intersect with women’s rights. However, organisations such as Scottish Women’s Aid and Rape Crisis Scotland are already trans-inclusive on a self-declaration basis, with sensible procedures in place to uphold safety and dignity for all.

In fact, the seven national women’s organisations in Scotland had this to say about the proposed reforms to the law: “We do not regard trans equality and women’s equality to contradict or be in competition with each other … We support the Equal Recognition campaign and welcome the reform of the Gender Recognition Act.”

The second key reform proposed is in relation to the age at which trans people can apply to have their birth certificate changed.

It proposes that people aged 16 and 17 can apply for and obtain legal recognition of their gender under the new self-declaration process, in line with other decision-making powers they have at the same age in Scotland. There is the potential that trans children and young people under the age of 16 might be allowed to do so with the consent of their parents.

At the risk of repetition, this is simply about having identity documents that match our day-to-day lives. It has nothing to do with access to medical services as has been incorrectly reported in some places. NHS gender identity services will continue to be extremely careful and cautious in how they support children to explore their gender identity.

As a single parent I realise just how emotive the subject of children is, but as a trans person I also know how painful, difficult and damaging it can be to grow up in an environment that neither supports or recognises who you are as a human being. Extending legal recognition to trans people under 16 with the support of their parents will mean those young people who are able to be themselves at home and school, who can already update their medical records and passports, will now also be able to have a birth certificate that reflects who they are.

The third and final reform is in relation to legal recognition for non-binary people. A non-binary person is anyone who feels that their gender cannot be neatly described using the words “man” or “woman”. Instead, we feel outside, between or beyond these categories.

I personally identify as non-binary. I use gender neutral pronouns such as “they” and “them” and wherever possible Mx as a title, a non-binary version of Mr, Mrs, Miss or Ms. Let me explain why this is so important: how many times have you heard someone describe some sort of epiphany, a moment in which they “find” themselves and from that moment forward their actions and lives are shaped by that knowledge? I had that moment a long time ago. I discovered I was a sensitive, intelligent human who was absolutely overwhelmed by the pressure to conform to a binary norm that was alien to me. The ability to identify as a non-binary person (even without legal recognition) released this pressure and gave me the peace and strength to function as a constructive member of society.

I offer no apologies or excuses for being what I am. The reality of my existence or identity is not diminished by those who seek to question or challenge it; that simply makes it more difficult for me to navigate my everyday life. The Scottish Government already acknowledges the existence of non-binary people, and the proposed reforms would see that acknowledgement turned into legislation affording people like me with the safety, security and respect the wider population take for granted. Ultimately, Gender Recognition Act reform is not the risky societal change that opponents of trans equality like to suggest. Toilets, single-sex services, language and life as we know it will all continue. It will give 0.6 per cent of Scotland’s population the dignity and privacy that is everyone’s right to have.

Supporting trans rights does not just benefit trans people – it is but one piece of the puzzle in advocating for all people being able to express themselves and their identity without being limited by harmful stereotypes.

Productions of Adam And Eve, by the National Theatre of Scotland – for whom I am the resident trans blogger – are based on the life experiences of Adam Kashmiry and Jo Clifford, two Scottish-based trans artists. Their stories and the plays which tell these stories could have been very different if they had unfolded in a world that supported everyone’s right to live their life with dignity, free of the constraints of gender. Reforming the Gender Recognition Act will not achieve this on its own but is another step towards it.

Oceana Maund is a non-binary trans activist and campaigner. Co-convener of Trans Pride Scotland and a sessional worker for the Scottish Transgender Alliance, Maund is currently resident trans blogger for the National Theatre of Scotland, in support of NTS’ productions of Adam And Eve.

The National Theatre of Scotland’s productions of Adam And Eve begin in May. Further info on all tour dates: nationaltheatrescotland.com