Chamber and committees

I am happy to write to the committee with that detail.

I know that concerns have been expressed about whether asylum seekers and refugees in Scotland would meet the requirement to be ordinarily resident and therefore eligible to apply for a GRC. I am sympathetic to those concerns. As you know, asylum and immigration are reserved to the UK Parliament and handled by the Home Office. Whereas we have responsibility for things such as access to essential services that enable integration, such as healthcare and education, this area rubs up against devolved versus reserved matters.

Obviously, refugees are in a bit of a different situation compared with asylum seekers in terms of their rights. There would be potential competence issues with the bill legislating for asylum seekers specifically to have access to gender recognition, as well as practical issues that would need further consideration. Peter Hope-Jones might have something to say about that further consideration.

First, I would point again to the evidence from the Scottish Human Rights Commission. The SHRC was very clear that there is no body of evidence, at least in the countries that now have a system of statutory declaration, that points to bad-faith actors trying to use the process in order to abuse women and girls.

All the evidence points to the abuse of women and girls coming from predatory men, and there is no evidence of such men using a system of statutory declaration for gender recognition in order to abuse women and girls. There is just no evidence of that.

On access to single-sex spaces, as I said in my opening remarks, the Equality Act 2010 provides for exceptions, including for trans people with a gender recognition certificate, if those exceptions are proportionate. The example that is given under the 2010 act is, I think, a counselling service for rape victims; there could be an exception whereby transgender women would be excluded from that service.

Other spaces, such as toilets and changing rooms, which have had a lot of attention in the discussion in the public domain, do not require and have never required a gender recognition certificate. As people in the trans community go about their daily lives, as they have done forever, they will use or not use those spaces. If that had been an issue, we would probably have been aware of it before we got to the confines of the debate around the bill.

Where single-sex spaces have a reason to exclude trans people, for the reasons that I outlined, that will not change as a result of the bill. That will remain the same, and it is important that it does.

That removal, and the separating out of legal and medical elements, are important. The redefinition by the World Health Organization is important and several countries have changed their processes.

We have heard evidence from people who have gone through the current system under the 2004 act that it is very demeaning, that the gender recognition panel is a group of people who are unknown to them, and that it is a difficult and onerous process. Therefore, we believe that the time is right to move to what is seen as international best practice, as many other countries have done.

I know that the committee has considered practice in several other countries that have changed their position, including Ireland, which is one of our nearest neighbours. Over the past few days, Spain has announced that it will be moving in that direction. We think that the change is in line with best practice and along the lines that are recommended by international bodies.

The different systems are just the processes for obtaining a GRC. The fundamental rights that protect transgender people, which are reserved under the 2010 act, remain the same. They will be the same on the day before the bill becomes legislation and on the day after it becomes legislation—if it does, as I hope it will. There is no change to any of those provisions in the 2010 act. That is why we have written back, asking for clarification of what the EHRC means, because we do not understand what it means.

Are you talking about what the NRS would gather or about what we might gather through annual reporting?

We are very clear that the bill has no impact whatsoever on the Equality Act 2010 provisions, including the exceptions. Everything that stands now will stand in the same way after the bill is enacted.

Of course, we know that the EHRC has updated its guidance. That guidance, which is for public bodies to use, is on the application of the provisions under the 2010 act and how that works in practice, because there are complexities in that. There are complexities now, and there will be the same complexities after the bill is enacted, so that guidance is important. However, to be clear, there will be absolutely no changes to the exceptions.

The issue does not relate directly to the bill—you alluded to that. It is about healthcare, whether we are talking about now or after the bill is passed.

Let me say a couple of things about that. The NHS tries to give a person their wish, where it can, if they want a man or a woman to provide care, whether we are talking about personal care that social care staff deliver or a smear test or other procedure. If a person specifically requests a doctor or nurse of the same gender, for whatever reason, the NHS will of course try to accommodate their wish as far as possible. Obviously, there are never any guarantees, given the availability of staff with the appropriate skills to manage the patient’s condition. I know, for example, that it can be quite difficult when a man requests male social care staff, because the workforce is predominantly female. It can be difficult to grant such wishes.

The patient rights charter sets out the preferences, culture, beliefs, values and level of understanding that will be taken into account and respected when using NHS services, which means that people’s wishes will be accommodated where possible. Moreover, the Equality and Human Rights Commission has published statutory codes of practice and guidance to help employers understand the relevant issues including some of the issues that you have raised. There is also the genuine occupational requirement exception, which can provide that a person appointed must not be a trans person where there is an occupational requirement, due to the nature or context of the work. There are a lot of what I guess might be described as safeguards in this area. Finally, the Scottish Human Rights Commission mentioned in its evidence the fair amount of case law that predates the bill and balances religious rights and the right to freedom from discrimination.

In the case of someone who did not disclose, I would have thought that that would be something for the employer to deal with. We are talking about very hypothetical situations here, but I cannot imagine that most people, particularly those in the caring professions, would not want to do anything other than respect the person’s wishes. That would be my view. I think that employers, guided by the guidance from the EHRC, have probably been dealing with such issues for many years, and the aim, particularly in the NHS, will have been to ensure that people’s wishes are respected as far as possible.

There are 16 transgender people in custody across the whole estate at the moment.

The committee will know that applicants are currently required to provide evidence that they have been living in their acquired gender for two years before applying, which we think is unnecessarily long. We have heard a range of views from stakeholders and respondents to the consultation, as has the committee. Some people feel that there is no need for any period of time; others are anxious that it should be longer. We are trying to find a balance.

The three-month period for living in the acquired gender represents our view of what is balanced and proportionate. It provides, on one hand, assurance that the applicant has for a time been living in the acquired gender before applying, without, on the other hand, imposing lengthy barriers.

I know that the committee heard from witnesses that applying for legal gender recognition is often the end of a process in which the person has made other changes, perhaps to documentation including their passport and driving licence. However, in the round, the three-month period helps to demonstrate the applicant’s commitment to living in their acquired gender for the rest of their lives. It is also important to note that an applicant who has been living in their acquired gender for at least three months—they might have been living in their acquired gender for many years—can affirm that in their statutory declaration, so there would not be a delay imposed on their application. In essence, they would affirm that they had been living in their acquired gender for three months or longer. I hope that that gives some reassurance that there would not be undue delay.