31 March marks Transgender Day of Visibility. The day provides everyone with the opportunity to celebrate transgender and non-binary people, and to raise awareness of the issues faced by the community worldwide. Transgender issues are becoming more prevalent, both in law and in society, and it is important that needs of the LGBTQ+ community are met in the Scottish legal system.

A transgender person is someone whose gender identity differs from that associated with the sex they were assigned at birth.

Transgender people and divorce or dissolution

Before 2004, in Scotland, there was only one ground for divorce, namely that that the marriage had broken down irretrievably. There are four different ways to establish this including the fact of separation for certain periods, adultery and behaviour.

This changed in 2004 following the introduction of the Gender Recognition Act 2004 (GRA 2004) - a UK-wide piece of legislation. The GRA 2004 amended the existing Scottish divorce legislation (Divorce (Scotland) Act 1976) to give a second ground for divorce, namely that an interim gender recognition certificate had been issued to one of the parties.

Applying for a gender recognition certificate

The GRA 2004 allows people aged 18 and over to apply to a Gender Recognition Panel for a gender recognition certificate. The effect of that is their legal gender becomes the gender indicated on the certificate.

If the individual applying for the certificate is married or in a civil partnership, the certificate issued will be 'interim', as opposed to 'full'.

If a person wishes to apply for divorce or dissolution on this basis, they must send an interim gender recognition certificate to the court, along with their divorce application. Advice on how to obtain an interim certificate can be found on the UK Government website. It is worthwhile noting that upon receipt of an interim certificate, an application for a divorce or dissolution must be made within six months.

As things currently stand, certain criteria need to be satisfied before an interim certificate will be issued. These are:

  • The person applying lives as the intended new gender (and has done so for the last two years and intends to do so until death);
  • The person applying has experienced gender dysphoria; and,
  • The person applying is able to provide medical reports supporting the foregoing.

If a divorce or dissolution is subsequently granted, the court will issue a full gender recognition certificate. Receipt of a full gender recognition certificate enables the recipient to:

  1. update their birth or adoption certificate, provided it was registered in the UK;
  2. marry or form a civil partnership in their new, affirmed gender; and,
  3. have their new affirmed gender on their death certificate when they die.

The current position of the Scottish Government is that these requirements are too stringent and restrictive. Commitments have been made to reform the legislation to reduce the two-year time period and to abolish the need for a medical diagnosis or medical report to support the application. 

Contributor

Kate Bradbury

Associate