Chamber and committees

I will take a moment to set out the process, as I have done in writing for the committee.

Before making an application to the registrar general for Scotland, a person must first make a statutory declaration. In that statutory declaration, the applicant must declare that they are aged at least 16; were born in, or are ordinarily resident in, Scotland; have lived in their acquired gender for at least the previous three months, or six months for 16 and 17-year-olds; and intend to live permanently in their acquired gender. A statutory declaration is an existing feature of the current process for obtaining legal gender recognition, and a feature that we are maintaining in our system.

A statutory declaration is a serious and significant matter. In Scotland, statutory declarations under the bill will be made in the presence of a notary public or a justice of the peace. Guidance on acting as a notary public is provided to solicitors by the Law Society of Scotland. The notary must be satisfied as to the identity of the applicant, based on evidence if the person is not known to them, and they must be satisfied that the applicant understands the contents of the statutory declaration. That could require photographic identification, such as a passport or a driving licence.

A statutory declaration is like an affidavit. It is a formal statement that something is true to the best of the knowledge of the person who is making the declaration. It is provided for by the long-standing Statutory Declarations Act 1835, and it is an accepted way of establishing facts in numerous official contexts.

It is a criminal offence to knowingly make a false statutory declaration or to provide false information in an application. The maximum penalty for those offences is imprisonment for up to two years or an unlimited fine—or, indeed, both.

Once a person has made the required statutory declaration, they must provide that to the registrar general when they make an application for a GRC, with all the safeguards associated with that stage.

I welcomed the discussion that I had with Michael Marra about his amendments. However, I consider that the statutory declaration is sufficient. Michael Marra’s amendments would not materially add to the requirement to make a statutory declaration; indeed, as others have said, they would be further barriers for a person accessing their rights, with a prescriptive list of recognised professions in amendment 48.

I have concerns about the countersigning requirement and how it might work in practice. For example, if an individual has been living in their acquired gender for a long time, that might require them to disclose their trans status to someone whom they have known for years who may be completely unaware of that.

I understand that applying for a passport involves a countersignatory process. However, applying for a passport does not involve making a statutory declaration. As I said, that statutory declaration could well require photographic identification, such as a passport or a driving licence.

Finally, the statutory declaration is clearly a higher threshold, given that criminal offences are associated with it.

Notaries public are quite often solicitors, and justices of the peace can sometimes be city councillors. They are well established in a number of pieces of legislation, and the Law Society of Scotland provides guidance to solicitors who act as notaries public.

Justices of the peace sometimes are city councillors, I think.

My officials tell me that that is correct.

We will try to provide as much information as possible, but that will be based on what is already in the 2004 act and on those examples. We want to provide people with as much clarity and information as possible. The registrar general’s website will have all of that information.

The committee’s stage 1 report asked for clarity on the phrase “ordinarily resident in Scotland”, and we provided that in our response. For today’s purposes, therefore, I reiterate that “ordinarily resident” is an established concept in several areas of law. As Tess White indicated, it is used in at least 17 acts of the Scottish Parliament and in many more UK acts, including section 3C of the Gender Recognition Act 2004, which, in relation to Scotland, enables certain persons to apply under an alternative track for a GRC if they are in a marriage that has been solemnised in Scotland or a civil partnership that is registered in Scotland. One of the conditions for such an application is that the applicant is “ordinarily resident in Scotland”.

Amendment 115, in the name of Pam Duncan-Glancy, seeks to include in the definition of “ordinarily resident” a person who is seeking asylum in Scotland. I am, of course, very sympathetic to the concerns that were expressed during stage 1 about the possibility that asylum seekers who live in Scotland might not meet the requirement of being “ordinarily resident”. However, an asylum seeker seeks asylum not in Scotland but in the UK, through immigration laws, which are reserved.

As I have just said, “ordinarily resident” is an established concept in law, and it is the case that, under the UK asylum and immigration system, some asylum seekers may not meet that test. Asylum seeker applicants who are not ordinarily resident in Scotland and who were not born in Scotland have a tenuous connection with our jurisdiction, which raises an issue of competence. In addition, case law has confirmed that a failed asylum seeker is not “ordinarily resident”, because they do not meet the requirement that their residence is lawful. In correspondence to UK ministers, I have highlighted the committee’s comments about asylum seekers, and I await their reply.

However, a route is open to asylum seekers to gain legal recognition. Although they may not meet the residency criteria in our process, they may be able to apply under the 2004 act as it applies in the remainder of the UK, as that does not specify a requirement for someone to be ordinarily resident in the UK.

For those reasons, therefore—unfortunately—I ask the committee not to support amendment 115.

Amendment 116, in the name of Tess White, seeks to strictly define the term “ordinarily resident in Scotland” as being limited to those persons who have been living or who intend to live in Scotland for a minimum period of one year. Having an intention to live in Scotland does not satisfy the test of being “ordinarily resident”. Tess White’s aim of redefining the term goes beyond the criteria that are established in law, against which an individual’s circumstances are assessed to establish whether they are ordinarily resident: namely, that their residence here is voluntary, is for settled purposes and is lawful—without the need to establish a particular period of residence. For those reasons, I urge the committee not to support amendment 116.

As I said, the justice secretary will put that into place before the bill is enacted, so it will be in advance.

I do not support Roz McCall’s amendments in the group, but I am happy to continue to discuss any further concerns that she may have ahead of stage 3.

At present, overseas gender recognition is not recognised automatically in the UK. Persons who have obtained gender recognition overseas and wish to be recognised in the UK have to apply to the gender recognition panel under its overseas track. The overseas track that is operated by the panel is used when a person has obtained gender recognition in an “approved country or territory”, as listed in a statutory instrument made by the secretary of state after consulting the Scottish ministers and the department of finance and personnel in Northern Ireland.

I think that that is the system that Roz McCall wishes to emulate, despite the fact that the list of countries and territories that the UK Government currently maintains has not been updated for 10 years. The list therefore features jurisdictions that have, in that time, changed or updated their systems for gender recognition, several of which are now based on models that are similar to the model that is contained in the bill. Equally, it does not include countries that have since introduced gender recognition systems, including our near neighbour Ireland.

Section 8N(1) of the bill, which these amendments would remove, provides that

“Where a person has obtained overseas gender recognition”,

they are

“to be treated ... as if”

they

“had ... been issued with a full gender recognition certificate by the Registrar General for Scotland”.

In broad terms, the bill’s approach is similar to the approach that is currently taken in Scotland to the validity of marriages that are entered into outwith Scotland, and to the recognition of divorce obtained overseas. It is a more straightforward, and less convoluted, approach than that which is proposed by Roz McCall.

Automatic recognition would, however,

“not apply if it would be manifestly contrary to public policy to”

do so—for example, in a case in which legal gender recognition was obtained overseas at a significantly younger age.

I therefore urge the committee not to support those amendments.

I turn to the amendments in my name. Section 8 of the bill inserts two new sections—sections 8M and 8N—into the Gender Recognition Act 2004, which provide for automatic recognition in Scotland of a gender recognition certificate that has been issued elsewhere in the United Kingdom and of gender recognition that has been obtained overseas.

Amendments 56 and 57 clarify that the automatic recognition ends if the gender recognition that has been obtained elsewhere no longer has effect.

Amendment 58 relates to cases in which someone with overseas gender recognition of their male or female gender goes on to acquire recognition of a non-binary gender in their own country—for example, Denmark or Malta. The amendment provides that, in Scotland, their gender will not revert to being their gender at birth but will continue to be the male or female gender that they had previously acquired.

These amendments are intended to cover specific eventualities in line with the general principles of the bill, and I urge the committee to support them.

I know that the amendments reflect Maggie Chapman’s view that the time period for living in the acquired gender as well as the reflection period should be removed, and that she has taken that position throughout the passage of the bill so far and in our discussions on the matter. Of course, I respect that, just as I respect the other views that have been expressed during the passage of the bill, even if I do not agree with them.

There are views that the time period should be longer or should be removed entirely, or that the reflection period should be removed, although usually with an increase in the time period for living in the acquired gender. However, I have not seen an alternative to our proposals that would be accepted and would keep to the principles of reforming the process. I consider the current requirement for applicants to provide evidence that they have been living in their acquired gender for a period of two years before applying to be unnecessarily long. A reduction in the time period to three months followed by the three-month reflection period represents a balanced and proportionate way of improving the system. Obviously, for 16 and 17-year-olds, it will be a period of six months of living in the acquired gender, if Christine Grahame’s amendments on that are accepted.

However, I consider that the reflection period could be a disproportionate barrier to people who are at the end of life, and I appreciate that an important benefit of legally changing your gender is that your death is registered in the gender in which you lived. Therefore, I have lodged an amendment to the bill, so that an applicant at the end of life can apply for a dispensation from the three-month reflection period. That amendment is in a later group of amendments. For those reasons, I cannot support amendments 87 to 89 and 91. However, I agree with Maggie Chapman that it will be important to keep that under review.

Of course, several amendments have been lodged to review and report on the operation and impact of the bill across a number of areas that we will come to later in the stage 2 proceedings. I am happy to support amendment 141 in this group, and I urge the committee to support it. It will be necessary for us to consider carefully what information and data it is possible and appropriate for us to gather, and we can take forward work on the impact of time periods on trans people who go through the application process. Therefore, I support amendment 141 in principle, but I will look to work with Maggie Chapman and other members ahead of stage 3 to ensure that any report and review amendments that are agreed at stage 2 coalesce around the same time frame.

The guidance to the 2004 act uses examples that include consistently using titles and pronouns in line with the acquired gender, updating gender-marker official documents such as a driving licence or passport, updating utility bills or bank accounts, describing themselves and being described by others in written or other communication in line with their acquired gender and using a name that is associated with the acquired gender.

Those are examples of what could constitute living in the acquired gender. The bill does not change the position in the 2004 act.

I do not consider that amendments requiring applicants to provide evidence that they have been living in their acquired gender, beyond any evidence that is required for statutory declaration, are in keeping with the general principles of the bill, as supported by Parliament at stage 1. Such amendments would introduce another set of barriers. For that reason, I ask the committee to reject Graham Simpson’s amendments.

That is why I have said that the requirement is not about looking or dressing a certain way but about the ways in which a person may demonstrate their lived gender to others. I have given examples of how that might be done with documentation that might provide evidence about how people are living their lives. National Records of Scotland will provide guidance for applicants on how to make an application and will be able to refer to examples based on the guidance to the 2004 act.