31 March marks Transgender Day of Visibility which is a day firstly to celebrate transgender and non-binary people but also to raise awareness of the issues faced by the community. This article explores some of the issues that might arise for transgender people in the context of Scots family law.
Legal recognition of gender identity in Scotland
The Gender Recognition Act 2004, which applies in Scotland, established a legal framework in the UK for transgender people to change their legal gender. Under the Act, individuals who have lived in their acquired gender for at least two years can apply for a Gender Recognition Certificate. This certificate allows the person to be legally recognised as their self-identified gender across all areas of life and enables them to obtain an updated birth certificate, marry or form a civil partnership in their gender and have their gender recorded on their death certificate.
There have been calls for reform of the Act, with many transgender advocates pushing for a simpler and less bureaucratic process for changing legal gender. In December 2022 the Scottish Government passed a bill, the Gender Recognition Reform (Scotland) Bill to try and streamline the process for obtaining legal gender recognition. The bill would have, in addition to the more streamlined process, also have removed the current evidence requirement, including evidence of a diagnosis of gender dysphoria, and a reduction in the length of time the process takes, both of which can be significant barriers for trans people.
The bill was prevented from receiving Royal Assent by an order under section 35 of the Scotland Act 1998 made by the Secretary of State for Scotland. That means the bill cannot be implemented at this time. However, it remains a bill passed by the majority of the Scottish Parliament. The Scottish Government has not withdrawn it and are clear that they committed to respecting, supporting and including transgender identities in Scottish law.
Parental rights and responsibilities for transgender parents
Under Scots family law, both parents typically share equal responsibility for their children's upbringing, regardless of their gender. When a person's legal gender changes their legal status as a parent does not change. That means that their right and responsibility to "safeguard and promote the child's health, development and welfare" and to "provide in a manner appropriate to the stage of development of the child direction and guidance to the child" remains. It should not therefore be necessary for transgender parents to clarify their rights and status in relation to their children.
Therefore, if you were previously male and transitioned to female, you will legally remain your child's father and all of the legal rights that flow from that. that. That may therefore not reflect the name or position you have chosen for your family although all of the legal protections will still be in place.
The law does not distinguish between transgender and cisgender parents in relation to parental rights and responsibilities. If gender identity were to be raised as an issue in family law proceedings, the court would, as in any other case, require to consider what is in the best interests of the child. As always, the welfare of the child is the paramount consideration for the court. it is important that courts approach matters in a gender-neutral way, focusing on the needs of the children and the capabilities of both parents, regardless of their gender identity. Courts in Scotland are expected to consider the welfare of the child as the paramount concern in all family law decisions, which should mitigate potential discrimination against transgender parents.
Parental rights and responsibilities might become more problematic when parents disagree on what is right and best for their child. Whilst the Act 2004 allows for a gender change, it applies only to individuals over the age of 18. Children often have very clear views of who they are and the Scottish Children and Young Person's Commissioner clearly supports a child's right to gender identification. If parents don't agree (either with each other or else the child) to the provision of medical care (for example, the provision of puberty blockers), the gender in which the child is to be raised or even by what name the child should be known, then the court can be asked to consider making an order called a specific issue order. As always, the court would require to consider what would be best for the child considering the welfare of the child as it's paramount consideration and would only make an order if it would be better for the child for that order to be made.
Gender identity and divorce or dissolution
In Scotland, parties can be divorced or obtain a dissolution of their civil partnership if an interim gender recognition certificate has been issued. The application for divorce or dissolution must be made within 6 months of the interim gender recognition certificate being issued. To obtain an interim gender recognition certificate three criteria must be satisfied:
- The person applying lives as the intended new gender, 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 divorce or dissolution is subsequently granted, the court will issue a full gender recognition certificate.
Financial provision on either divorce or dissolution is awarded based on the principals set out in the Family Law (Scotland Act 1985. The Act is gender neutral. Where conceivably an issue might arise in respect of fair division is where the gender transition has led to a change in the parties financial circumstances either in terms of assets, liabilities or income.
Assisted reproduction for transgender parents
There is currently no clear legislation on the position for transgender parents who conceive naturally after having transitioned. It is however likely that parents could rely on the parenthood status they would have had under their previous gender. Therefore, if a parent can still produce sperm but has transitioned to being a female, they could still claim to legally be the child's father even if they are a woman.
Assisted conception is a bit clearer. If a child is born through donor conception then both parents may still be classed as parents if married or in a civil partnership at the time of conception. If a child is born by way of surrogate then the surrogate is the legal mother (and if she is married or in a civil partnership her spouse or partner will be the second parent). A parental order will then be required to transfer legal parenthood to the intended parents.
Transgender individuals can face unique challenges when it comes to assisted reproduction and fertility services. Many transgender people use medical technologies to achieve a physical gender transition, which can sometimes result in temporary or permanent sterility.
Assisted reproductive technology plays a crucial role in helping transgender people build families, whether using their own gametes, donor gametes, or a gestational carrier. Providing gender-affirmative care in reproductive settings involves understanding the specific needs and terminology used by the transgender population. The importance of this cannot be overstated.
Family law in Scotland is continuously evolving to serve the needs of transgender individuals but there is still work to do and it is likely that further developments will be required to better serve our transgender and non-binary community. For more information on family law matters, please get in touch with one of our LGBT+ family lawyers.
Contributor
Senior Associate
