
DIRECTORATE FOR JUSTICE
abcd
DJUST : Civil Law and Legal System
L. MacKenzie
xxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
Our Reference: 202000011327
04 February 2020
Dear L. MacKenzie
REQUEST UNDER THE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002 (FOISA)
1. Thank you for your request dated 8 January under the Freedom of Information (Scotland) Act 2002
(FOISA).
Your request
2. In your request, you ask for:
(a) details of any analysis undertaken by the Scottish Government with regard to the work and
experiences of those service on the Gender Recognition Panel (GRP)
(b) al information held by the Scottish Government which considers whether the GRP has refused
applications due to concerns about the applicant's motivation and/or risk to others and whether the
need to apply to the GRP deters applications from people whose motivation and/or risk to others
would be of concern.
3. Your request also states that this information may include, but not be limited to:
(a) material submitted to the Scottish Government by the UK government or by the GRP;
(b) material submitted to the Scottish Government by other organisations or individuals;
(c) material identified by the Scottish Government from any source;
(d) any relevant analysis undertaken by or provided to the Scottish Government.
4. Lastly, your request asks for confirmation of whether the Scottish Government has raised this issue
with the GRP.
Scottish Ministers, special advisers and the Permanent Secretary
are covered by the terms of the Lobbying (Scotland) Act 2016. See
www.lobbying.scot
St Andrew"s House, Regent Road, Edinburgh EH1 3DG
www.gov.scot

Response to your request
5. I wil take each element of your request in turn.
Details of any analysis undertaken by the Scottish Government with regard to the work and
experiences of those serving on the Gender Recognition Panel
6. There is information about the work and experiences of the GRP publicly available. Under section
25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.
If, however, you do not have internet access to obtain this information from the website(s) listed, then
please contact me again and I wil send you a paper copy.
7. The GRP is an independent tribunal which operates across the UK under section 3(3) of the
Gender Recognition Act 2004:
https://www.legislation.gov.uk/ukpga/2004/7/contents. The 2004 Act
sets out the requirements placed on applicants and the remit of the Panel. The Gender Recognition
Panel has published guidance for applicants, including the documentary evidence they must provide to
the Panel at:
https://www.gov.uk/apply-gender-recognition-certificate/documents-you-must-provide.
This includes guidance on the content of necessary medical reports to be provided in certain
applications at:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/786903/t452-
eng.pdf.
8. Medical and legal members of the GRP are appointed under the existing arrangements in
Schedule 1 of the 2004 Act (at:
https://www.legislation.gov.uk/ukpga/2004/7/schedule/1). HM Courts
and Tribunals Service (HMCTS) is responsible for the administration of the GRP:
https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service/about. There is some
information about the Deputy President and the President of the Panel at: https://www.judiciary.uk/?
s=gender+recognition+panel.
9. On the Scottish Government's approach to the work of the GRP, it is currently consulting on a draft
Gender Recognition Reform (Scotland) Bil (the consultation). The consultation is available at:
https://www.gov.scot/publications/gender-recognition-reform-scotland-bil -consultation-scottish-
government/. Chapter 3 (at https://www.gov.scot/publications/gender-recognition-reform-scotland-bil -
consultation-scottish-government/pages/5/) sets out information about the provisions of the 2004 Act
and the current arrangements for obtaining legal gender recognition reform in the UK.
10. To the extent that your query may refer to an analysis of the decisions made by the GRP, the GRP
is a tribunal and its decisions are not something that the Scottish Government has a role in evaluating:
the tribunal is independent of government. As set out in paragraphs 14-16 of this letter, HMCTS do
publish statistical information about the handling of applications to the GRP and other tribunals and
courts, but not concerning the reasons for the GRP's decisions.
Scottish Ministers, special advisers and the Permanent Secretary
are covered by the terms of the Lobbying (Scotland) Act 2016. See
www.lobbying.scot
St Andrew"s House, Regent Road, Edinburgh EH1 3DG
www.gov.scot
All information held by the Scottish Government which considers whether the GRP has refused
applications due to concerns about the applicant's motivation and/or risk to others and whether the
need to apply to the GRP deters applications from people whose motivation and/or risk to others
would be of concern.
11. Some of the information you have requested is publicly available. Under section 25(1) of FOISA,
we do not have to give you information which is already reasonable accessible to you. If, however, you
do not have internet access to obtain this information from the website(s) listed, then please contact
me again and I wil send you a paper copy.
12. The 2004 Act lays down criteria which the GRP must determine are either met or not met in an
individual application. The information and evidence sought by the application forms and statutory
declarations of applicants under the 2004 Act are also set out in guidance at:
https://www.gov.uk/apply-gender-recognition-certificate. Neither the express provisions of the 2004
Act nor the guidance provided by the GRP to applicants (at: https://www.gov.uk/apply-gender-
recognition-certificate/documents-you-must-provide), refer to an applicant's "motivation", "risk" or "risk
to others".
13. The consultation sets out the information that the Scottish Government has identified about why
some potential applicants do not apply to the GRP, for example in the draft EQIA. The draft EQIA in
Annex J is at: https://www.gov.scot/publications/gender-recognition-reform-scotland-bil -consultation-
scottish-government/pages/18/.
14. HMCTS has published statistical information about applications considered by the GRP, including
the numbers of applications which have been refused: at
https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-july-to-september-2019 (Main
tables). HMCTS does not publish statistics on the reasons why they have refused applicants under the
2004 Act.
15. The available information suggests that the proportion of applications refused is relatively smal
compared to the number of applications received: in 2018/2019, of the 363 applications disposed of,
19 applications were refused whereas 330 applications were granted and either a ful or an interim
gender recognition certificate issued.
16. The Scottish Government is aware of three instances when an application dealt with by the GRP
has been subject to an appeal under section 8(1) of the 2004 Act: two appeals were made to the High
Court in England and Wales and one appeal to the Court of Session. The appeal to the Court of
Session is unreported. There are published reports of the two appeals considered by the High Court
in which you may be interested: Carpenter [2012 EWHC 4421 (Fam) at http://www.bailii.org/cgi-
bin/format.cgi?doc=/ew/cases/EWHC/Fam/2012/4421.html and Jay [2018] EWHC 2620 (Fam) at
http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Fam/2018/2620.html.
17. The Scottish Government is aware that since the implementation of the 2004 Act in 2005, there
have been a number of Gender Recognition Panel User Group meetings where members of the Panel
and/or the President or Deputy President, as wel as members of the HMCTS administrative team,
have met with interested stakeholders to discuss areas of interest in connection with their work. On
some occasions, officials from the Scottish Government have attended User Group meetings. Some
Scottish Ministers, special advisers and the Permanent Secretary
are covered by the terms of the Lobbying (Scotland) Act 2016. See
www.lobbying.scot
St Andrew"s House, Regent Road, Edinburgh EH1 3DG
www.gov.scot

of the minutes of these user group meetings are published and the fol owing link provides access to
minutes up to 30 April 2013:
https://www.whatdotheyknow.com/cy/request/gender_recognition_panel_user_gr.
18. The HMCTS website at https://www.gov.uk/government/organisations/hm-courts-and-tribunals-
service may be of assistance to you. That page includes information about how to make an
information request and where to submit it.
Confirmation of whether the Scottish Government has raised this issue with the GRP
19. We understand your reference to "this issue" to refer to (a) whether the GRP has refused
applications due to concerns about an applicant's motivation and/or risk to others and (b) whether the
need to apply to the GRP deters applications from people whose motivation and/or risk to others
would be of concern. As noted above, neither the express provisions of the 2004 Act nor the guidance
referred to in this letter provided by the GRP refer to "motivation", "risk" or "risk to others". While our
aim is to provide information wherever possible, in this instance, the Scottish Government does not
hold this information.
Your right to request a review
20. If you are unhappy with this response to your FOI request, you may ask us to carry out an internal
review of the response, by writing to Neil Rennick, Director of Justice, Room GW-02, St Andrew's
House, Regent Road, Edinburgh EH1 3DG or by email to xxxx.xxxxxxx@xxx.xxxx. Your review
request should explain why you are dissatisfied with this response, and should be made within 40
working days from the date when you received this letter. We wil complete the review and tel you the
result, within 20 working days from the date when we receive your review request.
21. If you are not satisfied with the result of the review, you then have the right to appeal to the Scottish
Information Commissioner. More detailed information on your appeal rights is available on the
Commissioner's website at: http://www.itspublicknowledge.info/YourRights/Unhappywiththeresponse
/AppealingtoCommissioner.aspx.
Yours sincerely
Sarah Duncan
CLLS : Family Law
Scottish Ministers, special advisers and the Permanent Secretary
are covered by the terms of the Lobbying (Scotland) Act 2016. See
www.lobbying.scot
St Andrew"s House, Regent Road, Edinburgh EH1 3DG
www.gov.scot