Chamber and committees

Can I just reply to that issue before it goes out of my head, convener? The question that Karen Adam asked is really important here, because the fact is that someone who works in the NHS does not require a gender recognition certificate to live their life as a trans man or trans woman. A gender recognition certificate is not required to work in the NHS. We are perhaps focusing on a gender recognition certificate when what is actually important is the day-to-day running of the NHS, its ability to meet people’s specific needs and requirements—as it does day in, day out—and its support for staff in difficult circumstances. It is important to manage that balance. Because each circumstance will be very different, it is difficult to legislate for that, particularly when staff do not require to have a GRC. That is my caveat here.

We discussed that last week, and I gave a number of extensive examples of how someone could show that they were living in their acquired gender. Those already exist under the 2004 act, so we are not changing anything in relation to the various ways in which someone could demonstrate that—they remain the same. We are talking about someone committing an offence and its being shown that they did not live in their acquired gender and had no intention of doing so. Evidence could be led showing the various circumstances of how they lived their life.

In relation to Jamie Green’s amendment, we are talking about an aggravator. The person would be in court because of the crime that they had committed, and if it can be shown that they had falsely obtained a gender recognition certificate in addition to that, the aggravator would be appropriate because of the seriousness of doing that. As Jamie Greene alluded to, the aggravator would send a clear message that that would be a very serious offence.

As I have set out, I want us to try to do all that we can, but our approach must be proportionate, and it must be possible for us to collect the information—it must exist in some form for us to be able to collect it.

I am happy to continue to have discussions about what could be included in an amendment at stage 3 to pull in as much information as possible, if that would be helpful. However, I do not want us to commit to collecting information that we do not think is available.

I also support Jamie Greene’s amendment 136, but as I think that what it proposes would be better incorporated into the wider review after three years, I will seek at stage 3 to incorporate its provisions into the requirements for post-legislative review. I hope that Jamie Greene will be minded to be content with that.

Amendment 156, in the name of Claire Baker, would place a duty on ministers to review the operation of section 22 of the 2004 act, including whether the criminal offences remain appropriate and whether any further exemptions are necessary. Under section 22 of the 2004 act, it is a criminal offence for a person who has acquired protected information in an official capacity to disclose the information to any other person. Protected information refers to either a person’s application or their gender prior to obtaining a gender recognition certificate. It is vital that a person’s right to privacy is protected in that way. We are not amending section 22 of the 2004 act.

There are already several exceptions to the criminal offence in section 22, such as when the disclosure is for the purpose of preventing or investigating crime. We can make further exceptions by way of regulations, but only when an exception relates to devolved matters.

Amendments 80 and 81 in the name of Pam Gosal are similar to those proposed by Claire Baker, but there is no requirement to publish a report of the review or any timescales, so I do not support those amendments. However, as I said, I agree that it is important to review legislation, so I support Claire Baker’s amendment 156 in principle, although I would seek to work with the member, given that the way in which the amendment is drafted raises several issues, including in relation to the limits on the power of ministers to make an order under section 22(5) of the 2004 act that does not relate to devolved matters. The addition of the words

“within the legislative competence of the Scottish Parliament”

does not in itself solve that issue. It would therefore need to be further amended at stage 3, if the member is happy to work with us on that.

I turn to Brian Whittle’s amendment. To be clear, the bill makes no changes to the rules for the participation of trans people in women’s sport, whether that is professional, amateur or in schools. As Brian Whittle is more than aware, governing bodies set their own policies on the participation of trans people under the Equality Act 2010, and many of them have done that. The UK sports councils, including sportscotland, published guidance for transgender inclusion in domestic sport back in September 2021. In addition, it is not clear that the information that he proposes be collected is currently obtainable.

We have listened to what people have said, and it is in recognition of that and in an effort to address some of those issues that we have brought forward the MAPPA regulations, which the Cabinet Secretary for Justice and Veterans—for the very reason of recognising the issue—has committed to putting in place before the bill is enacted. When we discussed these amendments, I explained why a blanket ban is not ECHR compliant. I went into that in some detail, for all the reasons that I am sure that Pauline McNeill and others will understand. Therefore, a risk-based assessment is the best way. The MAPPA regulations that the justice secretary is bringing forward are absolutely in recognition of those concerns.

Jamie Greene’s amendment 133, which relates to a false application and aggravation of offence, and which we have accepted, is about sending out a very strong message that, if someone who has falsely obtained a GRC goes on to commit a crime, that should be considered to be an aggravator. In that way, we recognise all those issues. Therefore, it is not fair to say that we do not recognise them. What we are trying to do is address them in a way that is legal and competent, within the bill or through other processes such as MAPPA, which the justice secretary has agreed to address.

Last week, I mentioned that, in principle, I would support the amendment. It is important to emphasise that Jamie Greene’s amendment 133 applies to the obtaining of a GRC fraudulently. As the committee knows, the bill already includes offences of knowingly making a false statutory declaration or including other false information in a GRC application.

The bill provides that the registrar general, with the consent of the Scottish ministers, can make regulations about the form and manner in which an application for a GRC is to be made; the form and manner in which a notice of confirmation is to be given; information or evidence to be included in an application for a GRC or a notice of confirmation; and other matters in connection with the making of an application for a GRC.

Regulations made under that section that contain a provision that adds to, replaces or omits any part of the text of an act are subject to the affirmative procedure. Otherwise, regulations made under the section are subject to the negative procedure. I note that the Parliament’s Delegated Powers and Law Reform Committee approved the delegated powers in the bill at stage 1.

The form and manner of making an application and of giving a notice of confirmation will be relatively procedural matters. As such, the negative procedure is considered an appropriate use of the Parliament’s time. Making all regulations under the section subject to the affirmative procedure would, in my view, place a disproportionate burden on the committee, with a potential impact on the other work that the committee has to undertake. Of course, even with the negative procedure, the Parliament still has to scrutinise, consider and vote on regulations.

I heard the concerns that were raised with the committee at stage 1 about regulations to make provision for or about further information or evidence that might be included in an application for a GRC or a notice of confirmation. However, the provision will not allow a change to the criteria and grounds that are specified in the bill for a GRC to be granted. For example, the power would not allow regulations to be made to reintroduce a requirement for medical evidence.

The provision is intended to ensure that the smooth running of the process will not be frustrated if, in the light of experience in the future, it transpires that some additional information or evidence should be submitted with an application or a notice of confirmation. Also, of course, just because an instrument is negative, it does not mean that the committee would not still have an opportunity to scrutinise and consider it in the normal manner.

For those reasons, I cannot support amendment 153.

On the point about healthcare, as I said, the Cabinet Secretary for Health and Social Care, Humza Yousaf, has written to the committee to lay out in some detail the actions that are being taken. He has said that any changes that might be made to the delivery of healthcare services for the transgender community will take into account many of the reviews that have happened elsewhere, including the Cass review.

However, someone who goes for gender identity healthcare, for whatever purpose, does not need to have a gender recognition certificate, so we need to be careful that we do not conflate the two issues. I am happy to work further with Sarah Boyack on some of the data collection and information issues that she has raised, if that would be helpful.

On the Scottish Prison Service—

It would always depend on the circumstances of the case, but, for example, if it could be shown that the person had no intention of living in the acquired gender and was obtaining a gender recognition certificate in the full knowledge that they had no intention to do so, that evidence could be gathered and presented to the court.

In the very unlikely circumstance that someone had sought to obtain a gender recognition certificate fraudulently, had no intention of living in the acquired gender, and then went on to commit an offence, the aggravator would show the seriousness of that—not just in relation to making a false declaration, but then in going on to commit a crime having obtained a GRC under false pretences. As I said, the circumstances of each individual case might be very different. That is one example of where that evidence would be shown. The court would then have to consider the circumstances of the case and make a decision on that.

Yes, and they can be applied if it is proportionate to do so. If an employer or service provider—you gave the example of the NHS—wanted to use such an exception under the 2010 act, they could do so as long as it was proportionate. The bill changes none of that—those protections are still there. The Equality and Human Rights Commission’s updated guidance clarifies and reiterates to public service providers that they have that exception but that, if they use it, they must show that it has been proportionate to do so.

I am happy to continue the conversation, but it is important to recognise that some of the exceptions, protections and rights that are already the case are not changed at all by the bill. It is important to reiterate that for the record. For the sake of clarity, I am happy to discuss further with Pam Gosal whether anything more can be done on the issue.