Chamber and committees

I will try to come back on all the points and questions that have been raised before making final comments on the other amendments.

On Rachael Hamilton’s question, it is worth pointing out that, under the Equality Act 2010, sex and gender reassignment are protected characteristics and that gender reassignment protection applies whether or not someone has a GRC.

On the point about the 2004 act and the effect of obtaining a GRC, the position is as set out in section 9 of the 2004 act. Nothing in the bill changes that. Essentially, that enables people to change their birth certificate to be in line with their acquired gender. That has been the case for 18 years, and that remains the same.

I will not comment on the court case, other than to say that the position of the Scottish Government is exactly the same as the position that the Equality and Human Rights Commission set out in court. We agreed with that position; there is no difference in position.

First, I say that I have been taking notes of the points that have been made by members throughout what has been quite a lengthy discussion. I occasionally consulted with officials on those points, which I would have thought was an entirely appropriate thing to do.

I turn to the amendments on the bill’s interaction with the Equality Act 2010. I support amendment 37. I cannot support any of the other amendments in the group and consider some of them to be outwith legislative competence.

In connection with Pam Duncan-Glancy’s amendment 37, it is appropriate that I provide the committee with an explanation of the way in which the bill does not modify the 2010 act and of the way in which, although a GRC can affect the treatment of people in accordance with the 2010 act, the bill does not change the effects of obtaining a GRC.

As I have said before, the bill does not modify the reserved provisions of the 2010 act, which includes not changing the protected characteristics and the single-sex exceptions under the act. In line with that, amendment 37 uses the word “modifies”, which has a technical meaning that refers to modifying rules of law by means of a textual amendment, repeal or otherwise.

As I also confirmed in the stage 1 debate, the effect of a GRC on the sex of a person for the purposes of the protected characteristic of sex is not changed by the bill. The effects of a GRC were provided for in the 2004 act, and those effects are not changed by the bill. The effect of a GRC on the protected characteristic of sex is a matter of the application of the rules in the 2010 act, and those are not altered by the bill.

The application of the rules in the 2010 act is not for the Scottish Government to explain or advise on—for very good reason, because, as I have explained previously, the provisions of that act are reserved. The Equality and Human Rights Commission, as a reserved body, and not the Scottish ministers, provides a code of practice—[Interruption.]

I can absolutely confirm that, because that is what the Equality Act 2010 says. As I have said quite a few times now, the bill changes none of the protections and exemptions under the 2010 act, so I can absolutely say that. Public bodies should look to the guidance in applying those provisions to their own particular circumstances. That has to be proportionate, as Daniel Johnson has just outlined. All of those provisions are there, and I can confirm, on the point that I think Pauline McNeill made, when asking me a question—

At the end of my remarks, I should have put on record that there has been some further consideration of the use of the word “connected”, which needs to be clarified. Is Jamie Greene willing to work with us ahead of stage 3 on the final wording, as it may require additional tweaking? Is he happy to do that?

In my earlier response to Pam Duncan-Glancy, I said that I was happy to continue to discuss the art of the possible here, as long as proposals are proportionate and doable. Some of the numbers that we are talking about are tiny, and that is, in fact, one of the issues with regard to information being obtainable. However, as I have said to Pam Duncan-Glancy, I am happy to continue to have those discussions as we try to coalesce the various aspects to which I am sympathetic around a stage 3 amendment.

Some of the information will involve very small numbers, so it would be very difficult to collect. In addition, some of the information in question is just not collected, so it would be disproportionate to set up whole new systems to collect that information. Where possible, we would want to base data on quality information that is already collected.

As I said, I am happy to continue discussions in particular areas, but any such requirement must be proportionate.

I know from the evidence that has been provided to the committee, and through the Government’s own consultations, that there is concern among members of the trans community about the potential for the misuse of the provision in the bill for a person with an interest to apply to a sheriff for a GRC to be revoked. I can understand that. In our stage 1 response, we set out why that provision is in the bill, and I will state the reasons again briefly.

The bill allows for

“a person who has an interest in a gender recognition certificate”

to

“apply to the sheriff for the revocation of the certificate on the ground that ... the application... was fraudulent”,

or that the applicant was

“incapable of understanding the effect”

of it, or that the applicant was

“incapable of validly making the application”.

The person seeking to revoke a certificate would need to have a genuine interest in the certificate: it would have to affect them personally or professionally and they would be required to produce evidence of the ground on which the certificate could be revoked. It is a common statutory requirement for a person to have an interest in a particular matter in order to bring proceedings to court, and the courts are used to determining what amounts to a genuine interest.

Amendments 95 and 130 would give the registrar general a preliminary role in assessing potential applications to a sheriff and refusing permission to apply to the sheriff, based on whether the application was malicious and whether the applicant had a genuine interest. However, we can see no precedent for that type of process, which would considerably expand the role and remit of the registrar general in a way that cannot be supported. It is for a sheriff, who has appropriate expertise, to make judgments on whether a person has a genuine interest and whether their claim is valid. I understand why Maggie Chapman and Pam Duncan-Glancy have lodged amendments 95 and 130, but I do not view the proposed role for the registrar general as reasonable; I therefore urge the committee not to support the amendments.

Amendment 97 would restrict those people who can apply for the revocation to the registrar general, a spouse or civil partner or the secretary of state, which is presumably intended to echo the current provision in the 2004 act, although it is not clear why the UK secretary of state should be included in relation to GRCs issued under the Scottish system.

The grounds on which an application for revocation of a GRC can be made under the 2004 act refer only to fraudulent applications. The proposals in the bill mean that the grounds on which an application can be made also include incapacity or cases in which the registrar general has issued the wrong type of certificate.

In relation to the committee’s recommendation to define who can be a person with an interest, we consider that seeking to list such persons in the bill could lead to the potential omission of an appropriate category of person. Under my amendment 60, the registrar general will be able to apply to a sheriff before issuing a GRC, but it is not the role of the registrar general or his staff to assess the capacity of applicants—the courts will be able to make that determination after considering all the evidence.

It is important to stress that the provision on the capacity of applicants to understand the effect of a GRC is there to protect those applicants, and removing those grounds could have negative impacts for some of them.

Amendments 96 and 132 introduce either a criminal offence or a power for a sheriff to award damages on the basis of a malicious application. I consider that to be disproportionate and I have serious concerns about criminalising applications to a sheriff in any circumstances on access to justice grounds. I am not aware of a precedent for such an offence, and there would be human rights implications to consider. It is important to remember that the courts deal with many applications in many areas, including when issues have arisen among family members. When issues arise in a family in those circumstances, criminalisation would not necessarily be a beneficial outcome for any party.

The power to award damages requires further consideration as it is not quite clear how “malicious” is to be interpreted, since it is not a commonly used term in this context. If a person were to make repeated vexatious applications to revoke a GRC or GRCs, there is an existing scheme under the Courts Reform (Scotland) Act 2014 that would allow the Lord Advocate, in the public interest, to apply to the Court of Session for a vexatious litigation order. That would require the person to get permission from the Court of Session before making a further application—I know that that is not exactly what Pam Duncan-Glancy’s amendment proposes, but it provides a safeguard against people abusing the system. For those reasons, I cannot support any of the specific changes that amendments in this group propose.

I reiterate that applicants for revocation would need to demonstrate that they have a genuine interest, and the sheriff would be satisfied of that. They would also need to provide evidence to prove the grounds of their application. Although I am sympathetic to the aims of amendments 96 and 132, I do not currently see what additional provision could be made in the bill to address those concerns without raising wider human rights and access to justice issues.

Obviously, if something could be added to the bill I would be happy to work with both members ahead of stage 3, but I ask the committee not to support amendments 96 and 132 at this time.

In the committee’s stage 1 report, the majority of committee members agreed that the age of eligibility for applicants should be 16, and the bill’s general principles were supported by members of all parties and were overwhelmingly supported by the Parliament at stage 1.

The committee has heard, as have I, from young trans people that they currently feel excluded from the system, particularly at an age when they want consistent documentation before entering higher or further education or starting their first job. Therefore, I cannot support Rachael Hamilton’s amendments, which are contrary to the bill’s general principles.

I have heard the views of members across the chamber on the need to ensure that young people receive guidance and support when making an application, but I am unable to support amendment 117, in the name of Carol Mochan. It is unclear to me what the provision of “balanced support” might be in relation to a young person’s application for a GRC, nor am I convinced that it would be beneficial to mandate in law the establishment of a wide-ranging support service for young people specifically in relation to making an application for a GRC. I consider that such an approach would be disproportionate, given the very small number of people we anticipate would apply in comparison with the general population.

Support options already exist, and we will ensure that young people are provided with guidance on their application and can access wider support. I note from a number of equalities organisations that, although they understandably and rightly support the general spirit of improving support for young people, they do not think that such provision needs to be in the bill. As such, I ask the committee not to support amendment 117.

However, I believe that the principles of what Carol Mochan is trying to achieve are provided by Christine Grahame’s amendments in the group, which take a balanced and proportionate approach to the issue. I support them all. The additional safeguards for young people provide the reassurance that MSPs have said that they want in relation to lowering the minimum age for application. A minimum age of 16 for applying for legal gender recognition aligns with the provisions in the Age of Legal Capacity (Scotland) Act 1991, where, under Scots law,

“a person of or over the age of 16”

generally has

“legal capacity to enter into any transaction”

having legal effect.

However, concerns have been raised with me by MSPs about striking the balance between autonomy and the protection of young people. I am grateful to Christine Grahame for speaking with me about the matter, and I agree that increasing the minimum period of time for applicants aged 16 or 17 from three months to six months would address concerns that have been raised while not placing a disproportionate barrier on young people seeking to apply.

We know that applying for legal gender recognition is often the end of a process whereby people make changes to their gender on official documents. When a young person has already been living in their acquired gender for a minimum of six months, they can affirm that in their statutory declaration, so no additional delay would be involved for them. Increasing the period of time to six months would also give young people greater opportunity to access support, advice or guidance before applying, which they could then confirm to the registrar general.

Although possibly well intentioned, amendments 120 and 124, in the name of Martin Whitfield, put the emphasis on the wrong place. Christine Grahame’s amendments place a requirement on the young person seeking to make an application to actively confirm to the registrar general that they have discussed the implications of their application with a suitable third party, and I think that that is a reasonable expectation.

Martin Whitfield’s amendments, however, place the onus on the registrar general to satisfy himself or herself that the applicant has capacity to understand and is not being coerced. As we said in evidence to the committee, it is not for the registrar general to make such determinations, but my amendment 60 gives the registrar general the power to apply to a sheriff in order to refuse an application on the grounds that it was fraudulent or that the applicant is incapable of understanding the effects of obtaining a GRC or of validly making the application. It is appropriate that such decisions be made by a sheriff on the basis of evidence taken by them rather than on the judgment of the registrar general.

For those reasons, I ask the committee not to support Martin Whitfield’s amendments and to support all those in the name of Christine Grahame.

I turn to amendment 31, in the name of Rachael Hamilton. I reiterate my position that there is no connection between the outcome of the Cass review of NHS England’s services and the bill, which is about the process to obtain legal gender recognition in Scotland. I see no reason why the commencement of the substantive provisions of the bill should be delayed. As the Scottish Government has continued to state, we will closely consider the findings of the Cass review in the context of our work to improve NHS Scotland’s services. That was backed up by the evidence that committee members heard during stage 1. Therefore, I urge the committee not to support amendment 31.

For completeness, on Rachael Hamilton’s comment on education, the bill does not modify education provisions in the Equality Act 2010 on the requirement for schools not to discriminate in providing education and offering places in schools. Extending the effect of a GRC to 16 and 17-year-olds does not change the education provisions in the 2010 act and the bill does not modify the effect of a GRC. Protection under the 2010 act will continue to apply to all children and young people and the arrangements for recognising someone’s transition will remain the same within schools.

The issue is less about that and more about the basis on which asylum seekers are here in Scotland—the fact that they are here under immigration legislation. If Pam Duncan-Glancy was minded not to press amendment 115 at this stage, I would be prepared to work further with her, and perhaps to try to elicit a response from the UK Government in advance of stage 3 so that we can discuss it further, to see whether there is anything that we can do on the issue within the competency of the bill.

I have said throughout the passage of the bill that it is essential that all applicants for a GRC have carefully considered this important legal step, understand the effect of applying and are able to access information and guidance to inform their consideration. I welcome the discussions that I have had with Sarah Boyack, whose amendment 128 would place a legal requirement on the Scottish ministers to take steps to ensure that those who are considering an application

“have access to appropriate support and information.”

However, that leaves open a lot of questions about what specifically that “appropriate support and information” would be. For example, it is not clear whether it relates to the process and legal effect of gender recognition or to wider support for people considering transition generally. It also raises the possibility of legal challenge relating to the specific meaning of “appropriate” in this context. I reiterate that NRS will signpost people to other organisations that can provide specialist support to applicants. For those reasons, I cannot support Sarah Boyack’s amendment, and I urge the committee to reject it.

Christine Grahame’s amendment 71 is more specific and sets out the information that the registrar general should publish, covering the process of applying, the effect of a GRC, the statutory declaration requirement and the consequences of false application. That is in line with what the registrar general has already committed to do, in evidence to the committee. I therefore ask the committee to support Christine Grahame’s amendment.