As transgender issues gain prominence in society and the legal system, it is critical that the Scottish legal system accommodate the requirements of the LGBTQ+ community.

Transgender individuals and dissolution or divorce

Before 2004, Scotland had a singular premise for divorce, which was the irretrievable breakdown of the marriage. There exist four distinct methods for establishing this, namely, behaviour, infidelity, and separation for specific durations.

This changed in 2004 with the passage of the Gender Recognition Act 2004 (GRA 2004), which was enacted throughout the United Kingdom. The GRA 2004 amended the existing Scottish divorce legislation (Divorce (Scotland) Act 1976) to add the issuance of an interim gender recognition certificate to one of the parties as a second ground for divorce.

Requesting a certificate of gender recognition

Those who are 18 years of age or older are permitted to petition a Gender Recognition Panel for a gender recognition certificate under the GRA 2004. This results in their legal gender being reflected as the gender specified on the certificate.

The certificate issued in the case of an individual who is married or in a civil partnership shall be referred to as “interim” rather than “full.”

A person who asks the court for divorce or dissolution on this basis must accompany their petition with a certificate of interim gender recognition. Guidelines regarding the acquisition of an interim certificate are available on the official website of the United Kingdom Government. Notably, an application for dissolution or divorce must be filed within six months of the date an interim certificate is issued.

As things stand, specific requirements must be met before the issuance of an interim certificate. The following are:

  • The applicant has been living with the intended new gender for the past two years and plans to continue doing so.
  • The applicant has a history of gender dysphoria; furthermore,
  • The applicant is capable of submitting medical reports that corroborate the aforementioned claims.

After the granting of a divorce or dissolution, the court shall proceed to issue a certificate of complete gender recognition. The beneficiary of a complete gender recognition certificate is granted the following:

  • amend their adoption or birth certificate, if it was originally registered in the United Kingdom;
  • enter into marriage or civil partnership by their newly recognised gender; and,
  • have their newly affirmed gender reflected on their death certificate.

The Scottish Government presently maintains the stance that these stipulations are excessively stringent and constraining. Efforts have been undertaken to amend the legislation to shorten the duration by two years and eliminate the requirement for a medical diagnosis or report to substantiate the application.