Chamber and committees

That is really interesting. There are cultural challenges, too. During recent discussions, some hospitality employers said that they do not see a need for unions because their staff trust them. That tells us something about what an effective voice means in that culture and brings me to a broader issue. We might need to think about cross-sectoral inquiries or work, because there are multiple interpretations and understandings of what fair work is or could be.

We have a particular challenge with the third sector. We know that the Scottish Government can have conditionality and very clear requirements around contracts and funding, but when the same workers are part funded by other funders or have other contractual obligations that do not have the same conditions attached, that puts immense pressure on organisations that are often already stretched. What should we do to ensure that we do not have a two-tier system in which a Scottish Government fund or contract brings one set of conditions but no one knows what happens when funding comes from someone else? If we do not have the employment law levers that we have talked about, how can we avoid a two-tier system?

That is really helpful.

That is really helpful. You spoke about the potential for equal pay claims, and we have talked a little bit about gender pay gaps, but disabled workers and people of colour also face inequalities in the workplace, so there is work for us to do in that space, too.

I think that Patricia Findlay mentioned that other countries have much clearer or more robust fair work indicators. Will you share some information on that to give us an indication of the kind of thing to look for so that we can be more direct in pushing the Scottish Government on that?

Good morning. I thank the witnesses for their comments so far. I will pick up on hospitality in a moment, but I completely agree with Patricia Findlay that fair work is a way of building a good economy. It is not just about poverty reduction, although the contribution to that is clear. We probably need to have that conversation more often.

Helen Martin spoke about hospitality. I appreciate that the convention’s inquiry into hospitality has just begun and is due to report in 2024, but given what we know about the challenges that that sector has faced in the past two and a half years, and given some of the issues that Colin Beattie and others have raised, we cannot wait until spring 2024 for your recommendations and conclusions. What should we be doing now to support and promote fair work in that challenging environment, given what has been said about the cost crisis? Are there things that we should be looking at? I know that that is a big question.

I will speak generally about the amendments in the group.

First, it is clear that the age of legal capacity in Scots law is 16. At that age, young people can get married, join the army, work and vote in Scottish Parliament and local elections. It is almost as if we trust them to make big life decisions on their own. I do not see why this situation is different.

Let us also remember that many young people have already transitioned socially—which might include coming out to friends and family—without applying for a GRC. Not having a birth certificate that matches their identity could cause issues when applying for jobs and for further or higher education and, more importantly, could leave them open to a lack of privacy regarding their trans status.

I am vehemently opposed to the time periods currently in the bill, both the time to be spent living in the acquired gender and the reflection period. Those are not based on specific evidence and fall short of international best practice for gender recognition, which has no waiting periods at all. To make the required time period for living in the acquired gender even longer for 16 and 17-year-olds simply increases the length of time for which they would have documents that disclose their gender history, without providing any clear benefit. It also risks creating more opportunities for those who do not agree with a young person’s decision to apply for a GRC to go digging through that young person’s online presence looking for misgendering, the use of a different name and so on. Young people tend to express themselves with far more gender fluidity than others and the longer time period puts them at greater risk of bad-faith actors.

How many young trans people have the members who lodged these amendments actually spoken to during drafting? If they had done so, I am not sure that we would be here debating them. I will vote against all the amendments in the group.

Rachael Hamilton talked about medical procedures and therapies. To be clear, that has nothing to do with an application for a gender recognition certificate. No medical process is required or expected as part of the gender recognition application process, and no GRC is required to undergo any medical transition. On Christine Grahame’s comments, I believe that she is sincere in her endeavours and her position on the issue. However, we fundamentally disagree on how to come at the issue.

Finally, I thank the cabinet secretary for her comments and for the many interesting and helpful conversations that we have had on that and other issues in the bill over the past many months. I acknowledge her comments about the amendment regarding provisions for end of life, which we will come to later, and I thank her for those. I also thank her for her comments about amendment 141. However, I will press the amendments in my name that seek to remove the requirement to live in the acquired gender for three months and the three-month reflection.

We are all losing the plot! [Laughter.]

I have made no secret of my opposition to any waiting times for the GRC application process. As we heard repeatedly in evidence,?the three-month period of living in the “acquired gender” before an application and the three-month reflection period following an application before it is granted are arbitrary, unnecessary, and unusual.

I will start with the last amendment in the group—amendment 141—as I appreciate that I am unlikely to attract cross-party support for abolishing both the time periods.

Amendment 141 calls for a review of the impacts of the time periods on trans people themselves. If we retain the time periods in any form, we do so knowing that we are going against international best practice and against the advice and guidance of trans people and the organisations that directly support them, so we should put in place a clear mechanism for reviewing the impact of the time periods on trans people particularly, and that is what amendment 141 would do.

The other amendments in the group—amendments 87 to 89 and 91—come from a position of principle: that we should recognise the autonomy of trans people, and that they know their own minds. Changing one’s legal gender is not something that one does on a whim. Indeed, the discussions that we have had and will have about ensuring that the gravity of making such a statutory declaration is understood make that even clearer. Changing one’s legal gender is not done lightly, and those who get to the point of applying for a GRC will likely have thought about, considered and reflected on the decision for months, if not years. They are also likely to have completed many other aspects of their transition over the course of several months or years before applying for legal gender recognition.

Dr Mhairi Crawford of LGBT Youth Scotland, who has spoken regularly to young trans people, said in a committee evidence session:

“Young people tell us that, before they come out, they have already done an awful lot of reflection to understand their true gender. Then they come out, usually to a safe group, and they build up from that. By the time they look to apply for a gender recognition certificate, they have been living in their acquired gender for quite some time”.—[Official Report, Equalities, Human Rights and Civil Justice Committee, 17 May 2022; c 10.]

Only Belgium and Denmark have a reflection period in place. We heard evidence that, in Denmark, where there is a six-month reflection period, people in the trans community consider it patronising and were unsure of what they should be reflecting on. Having listened to trans people, they now have plans in Denmark to remove the reflection period completely.

If the bill is trying to give trans people more agency and autonomy over their legal status, it seems completely counter to that intention to impose another standard of authority by imposing a waiting period on them. We are telling trans people that we do not believe them when they tell us who they are and that they do not know their own minds. We should not be doing that. I urge my committee colleagues to assert that trans people do know their own minds and to support my amendments in the group.

I move amendment 87.

We heard many of the witnesses express very grave concerns about the provisions in the bill as it stands that will expand the definition of a “person with an interest” who could apply for a GRC to be revoked. That would substantially increase the risk that someone who disapproved of a trans person’s gender recognition certificate application would seek to use the courts to have that certificate revoked. Such vexatious or malicious complaints to the sheriff court to revoke a GRC, simply because someone does not accept the trans status of the GRC applicant, should not be enabled. If such applications for revocation ever happen, they should be viewed as vexatious and/or malicious and treated accordingly.

One mechanism to reduce the opportunity to make vexatious or malicious applications for revocation is to clearly and narrowly define who a person with an interest is. The 2004 act defines a person with an interest quite narrowly as a spouse, the registrar general or the secretary of state. My amendment 97 would replicate that narrower definition to include a spouse, civil partner, the registrar general and the secretary of state. The aim is to limit the likelihood of unsupportive family members, or others who disapprove of a trans person’s right to be who they are, using the mechanism to challenge a GRC.

My amendment 95 seeks to put in place a step before any revocation application gets to the sheriff court, by requiring it to go through the registrar general’s office first. The registrar general would then determine whether it was appropriate to escalate such a revocation application to the courts. However, I think that Pam Duncan-Glancy’s amendment 130 is better than mine, so I will not press my amendment 95 and will instead support hers.

On the penalties for those who seek to revoke a GRC for vexatious or malicious reasons, my amendment 96 is, essentially, a probing amendment in an attempt to have a wider conversation before stage 3 to tighten up that bit of the bill. I will not move amendment 96 as, again, I think that Pam Duncan-Glancy’s amendment 132 covers that aspect more effectively. Nonetheless, I consider that we need further conversation to make it absolutely clear that malicious or vexatious attempts to revoke a gender recognition certificate will not be allowed, and will be taken very seriously when they happen.

I move amendment 95.

I find Michael Marra’s amendments 45 and 48 to be very problematic.

One of the key principles of the bill is that of self-declaration: that trans people should be able to get a gender recognition certificate by a process of self-identification. More than two thirds of us agreed to that in the stage 1 debate a couple of weeks ago. However, amendment 48 would require a person from a listed recognised profession who has known the applicant for at least two years to countersign the trans person’s application. That is fundamentally at odds with the idea that the bill is based on—the principle of self-declaration. In addition, it would create additional barriers to legal recognition for some trans people.

I say for the avoidance of doubt that statutory declarations are not something that you can make to a friend or a neighbour on a whim. They are sworn statements made under oath and witnessed by a justice of the peace, local councillor or notary public, and making a false statutory declaration carries a sentence of up to two years in prison. That is already a significant and serious step. In my opinion, the opinion of many who work with and support trans people, and that of trans people themselves, there is no value in requiring an additional step through countersignatories.

Michael Marra compares the matter with the passport application process, but passport applications do not require a statutory declaration; they simply require a witness. It is not appropriate for an outsider to have to confirm a person’s gender identity.

It could also be difficult for more socially isolated trans people to find someone in a recognised profession that is listed in amendment 48 who has known them for two years. I do not think that that should prevent them from obtaining legal recognition of who they are.

I strongly urge colleagues to vote against amendments 45 and 48.