Chamber and committees

I say to Sarah Boyack, as I said to Pam Duncan-Glancy when we had this discussion, that the question is what that would mean. Would it mean that Scottish ministers would decide which organisations people should be signposted to? I can see that that would get us into a great deal of difficulty, so I would be very resistant to that. If it is about the process, I absolutely agree with Sarah Boyack; the process needs to be made very clear. However, if it is about the type of support that people should receive, it would not be helpful for Scottish ministers to identify appropriate organisations to provide support.

That is where my concerns lie. I again point to Christine Grahame’s amendments, which focus on the process of applying, the effect of the statutory declaration requirement and the consequences of a false application. Having said that, I would be happy to continue to have discussions with Sarah Boyack in advance of stage 3, but for today’s purposes I ask that Sarah Boyack’s amendments are not supported and that Christine Grahame’s amendment is.

To say that someone is “living in the acquired gender” means that they are living their daily life in a gender that is different from that which was recorded at birth. In the context of the bill, that is the gender that they are living in when they make an application.

Applicants will have to make a statutory declaration that they have lived in their acquired gender for a minimum of three months—six months for 16 and 17-year-olds—before applying, and that they intend to do so for the rest of their lives.

The aim of the bill is to improve the process for those who apply for legal gender recognition, as the current system can have an adverse impact on applicants due, in part, to the burdensome evidence requirements. The bill establishes a more straightforward process that is based on statutory declaration.

As I indicated earlier, the requirement is not about looking or dressing in a certain way but about the ways in which a person may demonstrate their lived gender to others.

In that respect, the bill does not change the position in the 2004 act, in which examples of appropriate evidence of living in the acquired gender include updating official documents such as a driving licence, passport, utility bill or bank account. Numerous other examples are provided within the guidance on the 2004 act, which has now been in place for 18 years.

No. That is why I said that, in practice, that would be established through a letter from the applicant’s doctor confirming that the person is

“gravely ill and not expected to recover”,

and that the detail of that would be set out in guidance. It would not be for the registrar general to decide; the decision would be made on the basis of the clinical information provided to the registrar general.

I have nothing else to say. I press the amendment.

Amendment 53 agreed to.

Amendments 54 and 55 moved—[Shona Robison]—and agreed to.

Amendment 7 not moved.

Section 7, as amended, agreed to.

Section 8—Gender recognition obtained outwith Scotland

Amendment 56 moved—[Shona Robison]—and agreed to.

Amendment 32 not moved.

Amendment 93 not moved

Amendments 57 to 59 moved—[Shona Robison]—and agreed to.

Amendments 33 and 34 not moved.

Amendment 8 moved—[Rachael Hamilton].

I want to be clear from the start that the real threat to women and girls is predatory and abusive men. Unfortunately, as is the case around the globe, we live in a society in which men in the home and outside it are the perpetrators of violence against women and girls, and that violence must be tackled. There is no evidence, however, that those men would obtain a GRC in order to abuse women, or that that has happened in any other countries that have similar processes.

I recognise that some people have concerns and fears that are genuinely held, and we should seek to address them, but concerns about the behaviour of abusive and predatory men should not mean that we impinge on the rights of trans people. Although I understand people’s concerns about abusive men, the bill takes exactly the same approach as the current system, in which none of those restrictions applies to people who have committed certain offences.

This group of amendments would prevent people who have committed certain offences from applying for or receiving a GRC, pause applications for people who are charged with certain offences or introduce reporting requirements relating to certain convictions, and mean that anyone with any criminal convictions at all, no matter what they are, would need to declare them.

Amendment 123 does not exclude spent offences, and it is not clear how that could be checked by the registrar general. Amendments 125 and 118 would reintroduce the need to show gender dysphoria for some offenders.

The Scottish Government considers that amendment 114 is likely to be outwith legislative competence due to its being incompatible with article 8 of the European convention on human rights. A further difficulty is that the ban would depend on when those requirements are imposed. In one case, the requirements could be just about to elapse when an application for a GRC was made; in another, the ban on being able to obtain a GRC could last for a considerable number of years.

Similarly, amendments 127 and 119 would be incompatible with article 8 of the ECHR, and possibly also article 14, because they differentiate between persons based on the procedure attaching to the charge for the offence in a way that cannot be justified. There is also the same difficulty as with amendment 114 in relation to the timing of when the notification requirements are imposed.

The Scottish Government considers that, for similar reasons, amendment 131 is also likely to be outwith legislative competence as it is incompatible with article 8, and possibly article 14, of the ECHR because it differentiates between persons based on the type of offence committed. Again, no such restrictions are part of the current system under the United Kingdom Government, which must also comply with the ECHR.

To be clear, inserting provisions into the bill that are incompatible with the ECHR puts implementation of the bill in jeopardy. It also brings the risk of legal challenge before the new process can be put in place. If successful, such a challenge could prevent implementation until the compatibility issues were resolved through primary legislation.

The bill already provides for

“a person who has an interest”

in a GRC application to apply to a sheriff to revoke a certificate on the ground that the application was fraudulent.

However, we have listened to the concerns that some members have raised about the possibility of sex offenders seeking to take advantage of the proposed processes for gender recognition, and although we think that the processes for sex offender notification requirements are working well, Scottish ministers have an existing legislative power to vary the information that is provided at notification. Therefore, I can inform the committee today that the Cabinet Secretary for Justice and Veterans will, before the bill is commenced, introduce regulations to amend the sex offender notification requirements so that those who are on the register are required to notify the police with details about whether they have made an application for a gender recognition certificate. That will mean that additional information will be available to identify an individual and inform their subsequent management under the multi-agency public protection arrangements. That will add to the information that those who are on the register are already required to provide to the police, such as name, address and passport, so that the police are fully informed about the information relating to the person’s identity.

That does not mean that there is any implied link between trans people who are seeking gender recognition and sex offenders, but it will mean that Police Scotland will be informed of an application by someone on the register. That will allow the police to take action in relation to the application itself, if necessary, or as part of the broader police role in managing the registered sex offender population. If it believes that an application is fraudulent, Police Scotland could apply to a sheriff as a person with an interest for revocation of the GRC and/or work towards criminal prosecution under the offences in the bill.

Under Scottish Government amendment 60, the registrar general, if informed by Police Scotland, could reject such an application following a successful application to the sheriff, meaning that the applicant would be denied a GRC. That means that it is possible to prevent someone who is on the sex offenders register from fraudulently obtaining a GRC.

In addition—I do not want to anticipate discussion of a later group—I note that Jamie Green’s amendment 133 is relevant to those issues. I will support the principle of a new statutory aggravation to an offence in connection with fraudulently obtaining a GRC. Taken together, that is the right, proportionate and competent set of measures to put in place in the area. On the basis of the action and the safeguards that I have set out, I urge the committee not to support any amendments in the group.

My approach has always been to keep an open door and I have spoken to people from all political parties about all these matters.

My principle is not to move beyond the examples given for the 2004 act, because I think that they provide clarity. We will want to ensure that people are aware of those. I take Graham Simpson’s point about the need to make people aware of the information. For example, the registrar general’s website, where every bit of information about the whole process can be put in one place, would be able to include those examples.

I would be reluctant to put anything into the bill that goes beyond the 2004 act, but if you think that it would be helpful to have further information on the website or in guidance, I will be happy to have that conversation. I am happy to speak to Graham Simpson further anyway, but I cannot guarantee that I would go beyond the 2004 act.

Although there was no specific recommendation in the stage 1 report, the committee highlighted differing views on the reflection period and invited me to consider it further. I noted the stage 1 evidence that the reflection period could present a disproportionate barrier to an applicant who is nearing the end of their life because of illness.

As I said in the context of an earlier group of amendments, we remain of the view that the reduction in the minimum period of living in the acquired gender to three months, or six months for 16 and 17-year-olds, combined with the introduction of a three-month reflection period, represents a balanced and proportionate way of reducing the length of the overall process.

However, in the response to the committee’s stage 1 report, I undertook to lodge amendments to create a dispensation to allow the waiving of the three-month reflection period in cases where the applicant is nearing the end of their life.

My amendments in this group create that dispensation. They have been developed in consultation with National Records of Scotland and reflect the process and provisions with similar dispensations applying to marriage under the Marriage (Scotland) Act 1977. They would require the registrar general to be satisfied that the applicant is

“gravely ill and not expected to recover.”

In practice, that would be established through a letter from the applicant’s doctor confirming it, and the detail would be set out in guidance. Again, that reflects the equivalent process with marriage applications.

Amendment 73 ensures that a fraudulent application for dispensation would be included in the offence created by the bill.

Pam Duncan-Glancy’s amendment 126 seems to have a similar goal, but it takes a different and, in my view, narrower approach. It disapplies the requirement for notification after the reflection period where the applicant is terminally ill, rather than empowering the registrar general to waive it. I understand why that approach might seem more attractive, but in practice the registrar general in either version would need to establish that the individual is indeed near the end of life.

We are not seeking to provide a definition of an end-of-life illness, such as amendment 126 does, as we recognise that someone could be gravely ill and at the end of life due to old age, for example, not just through a terminal illness due to a progressive disease, as outlined in Pam Duncan-Glancy’s amendment 126. Although that approach is appropriate in the Social Security (Scotland) Act 2018, in which a definition is needed with regard to accessing disability benefits at a higher rate and on a fast track, I do not believe that it is appropriate here, where we are waiving a reflection period for someone at the end of life due to illness or old age.

The use of the wording

“gravely ill and not expected to recover”

in my amendments matches the wording in the 1977 act and the registrar general is already familiar with making dispensations on that basis. It is preferable to align the provision with that for marriage, rather than with the provisions for social security, because it is a more closely comparable situation. The provision is designed for cases where there is a high risk that the applicant will die before an important change to their legal status can be made—one that it is important to accurately record before death.

I ask the committee to reject Pam Duncan-Glancy’s amendment 126 and accept the amendments in my name. I am, of course, happy to continue discussions with Pam Duncan-Glancy, but I have set out to the committee a rationale for why it is more appropriate to align the requirements with those already recognised for marriage, rather than with those in social security legislation.

Christine Grahame makes the important point that there has been cross-party support for aspects of various amendments, which is a good thing. I have said previously, have said today and will say again that my door remains open for further discussions in advance of stage 3. I feel, and I hope that others feel, that I have had constructive discussions, and where I have been able to support and work with people on amendments—

I welcome the conversations that I have had with Pam Duncan-Glancy about amendments that would require the statutory declaration to include confirmation that the applicant understands that making a false statutory declaration is an offence. It might be circular for the declaration about understanding that making a false declaration is an offence to then be subject to the offence provision itself, but I consider that Pam Duncan-Glancy’s amendment will be an additional measure in ensuring that the applicant is aware that making a false statutory declaration is an offence, just as the notary public or justice of the peace who is administering the statutory declaration is required to ensure that the person understands the contents of what they are signing. Therefore, I ask the committee to support amendment 122.

It is already an offence to knowingly make a false statutory declaration, with the maximum penalty for the offence being imprisonment for up to two years, an unlimited fine, or both. The offence provision in section 14 of the bill also already provides that an offence is made if the declaration or other information in an application

“is false in a material particular”,

and the position is the same for the existing offence.

The amendments that are proposed by Graham Simpson would require ministers to make regulations about what would constitute a false statutory declaration and the evidence that would be required. As the committee will be aware, prosecutorial policy is for the Lord Advocate rather than for ministers. As with any criminal offence, it would for the police and the procurator fiscal to demonstrate, and for the court to determine, whether an offence had been committed in any individual case.

Graham Simpson made reference to living in the acquired gender, but the point here is that there is no change to what living in an acquired gender means. It is exactly the same as it is under the 2004 act. The requirement is not about looking or dressing a certain way; it is about the ways in which a person might demonstrate their lived gender to others. In that respect, the bill does not change the position under the 2004 act, under which examples of appropriate evidence of living in the acquired gender include updating official documents, such as a driving licence or a passport, utility bills or bank accounts. A number of other examples are given in the 2004 legislation.

With all of that said, I urge the committee not to support amendments 22 and 28.

Amendments 2 to 17, in the name of Sue Webber, are obviously not in keeping with the general principles of the bill as agreed to at stage 1 by the majority of the committee and by a clear majority in Parliament, including members of all parties.

Amendment 26, in the name of Rachael Hamilton, which presumes that Sue Webber’s amendments will be agreed to, would remove the requirement for medical reports submitted to a gender recognition panel to include details of treatment that the applicant has undergone, is undergoing or has had prescribed or planned for them for the purpose of modifying sexual characteristics. The other requirements of the 2004 act that relate to medical reports would remain.

Rachael Hamilton asked a question about international evidence. The committee itself looked at that. One of the people who gave evidence was the United Nations independent expert on protection against violence and discrimination based on sexual orientation and gender identity. The expert gave evidence that some of the theoretical concerns that were raised during the adoption of those processes have not materialised in the numerous countries that have implemented similar systems. The committee’s stage 1 report noted that the majority of members recognised that

“when asked about evidence of abuse and concerns, no witness was able to provide concrete examples.”

In short, Parliament has shown its support for the principles and purpose of the bill, which, as the long title shows, aims

“to reform the grounds and procedure for obtaining gender recognition; and for connected purposes”.

I urge members to vote against these amendments.