Paragraph 5 – issue of full gender recognition certificate after interim certificate: applicant married
261.Paragraph 5 inserts new sections 4C, 4D, 4E and 4F into the Gender Recognition Act.
262.New section 4C provides for two situations (“Case A” and “Case B”) when the Panel must issue a full gender recognition certificate.
263.Case A is the situation where an applicant is in a protected Scottish marriage but the applicant’s spouse has not issued a statutory declaration of consent. If the applicant’s spouse changes his or her mind before the marriage is ended and wishes the marriage to continue, subsection (2) provides that the applicant can apply to the Panel for a full gender recognition certificate. The Panel can only issue a full gender recognition certificate to the applicant following such an application if it is satisfied that the following conditions are met:
an interim gender recognition certificate has been issued to the applicant (subsection (2)(a));
the applicant was a party to a protected Scottish marriage at the time the interim gender recognition certificate was issued (subsection (2)(b));
the applicant is in a protected Scottish marriage (subsection (2)(c)); and
both parties to the marriage now consent to the marriage continuing (subsection (2)(d)).
264.If these conditions are not met, the Panel will reject an application for a full gender recognition certificate (subsection (4)). Subsection (5) sets a time limit for an application under Case A. The time limit is six months from the date on which the interim certificate was issued.
265.Case B is the situation where an application is made by a civil partner in a protected Scottish civil partnership, an interim gender recognition certificate is issued and the couple subsequently decide to change their civil partnership into a marriage under section 3 of the 1977 Act, as amended by this Act. Subsection (3) provides that once the civil partnership has become a marriage, such applicants can apply for a full gender recognition certificate.
266.The Panel can only issue a full gender recognition certificate to the applicant if it is satisfied that the following conditions are met:
an interim gender recognition certificate has been issued to the applicant (subsection (3)(a));
the applicant was a party to a civil partnership at the time the interim gender recognition certificate was issued (subsection (3)(b));
the notice of intention to marry must have been given within six months of the date of issue of the interim gender recognition certificate being issued (subsection 3(c));
the civil partnership must have become a marriage (subsection (3)(d));
the applicant is a party to that marriage (subsection (3)(e)); and
the applicant’s spouse consents to the marriage continuing (subsection (3)(f)).
267.If these conditions are not met, the Panel will reject an application for a full gender recognition certificate (subsection (4)).
268.Subsection (6) sets a time limit for conversion of an interim certificate to a full certificate under Case B. The time limit is six months from the date when the civil partnership becomes a marriage.
269.Applications under Case A and Case B require the applicant’s spouse to issue a statutory declaration of consent (subsection (7)). Applications under Case B must additionally include evidence of the date on which notice of intention to marry was given and evidence that the civil partnership has become a marriage (subsection (8)).
270.Where the Panel receives an application to issue a full gender recognition certificate in either Case A or Case B, subsection (9) requires it to notify the applicant’s spouse both of the application and also of the issue of the full gender recognition certificate (if the Panel grants the application).
271.New section 4D provides for the situation where an applicant has made an application for a full gender recognition certificate under new section 4C but before that application can be determined the applicant’s spouse dies.
272.Under section 5(2)(b) of the Gender Recognition Act as enacted, if the applicant’s spouse dies within six months of the interim gender recognition certificate being issued, the applicant can apply for a full gender recognition certificate within six months of the date the death. This section may not be available to applicants who have applied under new section 4C if the application has not been determined within the time limit in new section 4C(5) and (6). New section 4D provides that in such cases the applicant can still rely on the existing section 5(2)(b) to apply for a full gender recognition certificate.
273.New section 4E makes provision so that a person who is in a protected Scottish marriage may apply under summary application to the sheriff for a full gender recognition certificate. An application may be made where the applicant has an interim gender recognition certificate issued by the Panel and the applicant’s spouse has not given a statutory declaration of consent to the marriage continuing after the issue of a full gender recognition certificate.
274.Under subsection (2), the sheriff must grant the application if the sheriff is satisfied that the applicant was in a protected Scottish marriage when the interim gender recognition certificate was issued; the applicant is still in the marriage; and the application is made to the sheriff within 6 months of the interim gender recognition certificate being issued by the Panel.
275.Subsection (3) requires the sheriff to notify the applicant’s spouse when an application is made and when the full gender recognition certificate is issued.
276.Subsection (4) requires the sheriff where a full gender recognition certificate has been issued to send a copy to the Gender Recognition Panel.
277.New section 4F makes provision to allow applications to be made to the Panel for a full gender recognition certificate in certain cases where the civil partner or spouse of a transgender person dies.
278.Section 4F covers two types of cases (cases A and B) where an interim gender recognition certificate has been issued to a person who is in a protected Scottish civil partnership; the civil partners then take steps to change their civil partnership to a marriage but this process is interrupted by the death of the non-transgender partner before a full gender recognition certificate has been issued.
279.Subsection (2) makes provision for ‘Case A’ where an interim gender recognition certificate has been issued to a person who was in a protected Scottish civil partnership; the civil partners submitted notice of intention to marry within the specified timescales and the non-transgender partner dies before the marriage has taken place.
280.Subsection (3) makes provision for ‘Case B’ where an interim gender recognition certificate has been issued to a person who was in a protected Scottish civil partnership; the civil partners have changed their civil partnership to a marriage but the non-transgender spouse dies before the transgender person could make an application to the Panel for a full gender recognition certificate under section 4C(3) of the 2004 Act. Where an application is made under section 4C(3) and the non-transgender spouse dies before the application is determined, section 4D of the 2004 Act, as explained in paragraphs 271 to 272, already allows an application to be made to the Panel for a full gender recognition certificate.
281.Applications under section 4F (under both cases A and B) can only be made if the civil partner or spouse died 6 months after the issue of the interim gender recognition certificate. This is because section 5 of the 2004 Act (in relation to spouses) and section 5A of the 2004 Act (in relation to civil partners) already allow applications to be made to the Panel for a full gender recognition certificate when the applicant’s spouse or civil partner dies within 6 months of the issue of an interim gender recognition certificate.
282.In relation to case B, the Panel must be satisfied that the applicant’s spouse died within six months of the civil partnership becoming a marriage.
283.Under section 4F(4), the applicant must still be single. Under section 4F(5), an application must be made within 6 months of the death of the spouse or the civil partner.
284.Under section 4F(6), an application must include evidence (i) of the death of the spouse or civil partner and of the date the death took place and (ii) of the date on which notice of intention to marry was submitted.
