Chamber and committees

I have set out why I think that the three-month period provides a balanced and proportionate response to concerns that we would go from a period of two years to no time at all. We feel that three months is not unduly onerous. Many people who have been living in their acquired gender for quite some time—that will probably be the vast majority of applicants—will be able simply to affirm that. There will, therefore, be no further delay for those people. Obviously, the Government will reflect on any recommendations that the committee makes, but I feel that it is important to try and keep a balance in the bill.

Yes.

I understand the concerns, and I understand how important language is. The term “acquired gender” is the language that is used in the 2004 act and other existing legislation to describe legally changing your gender. We have used that language partly to ensure that the provisions that are being inserted in the 2004 act will work with the rest of the act, without the need to change references to acquired gender in provisions that are not being amended, because doing that would clearly be more complicated. Obviously, we will look at the committee’s recommendations, but for the purposes of legal clarity and understanding, it is appropriate to use language that is consistent with existing legislation.

I am also not clear—the academics to whom you refer were not clear, either—what alternative language could be used to accurately describe legally changing your gender.

However, it is important to say that we do not generally use the term “acquired gender” more widely to describe the experience of trans people. We will ensure that guidance and descriptions in respect of the process use language that is clear, respectful and inclusive.

The bill lays out who is able to challenge. That includes a spouse, a child and so on.

The equalities impact assessment sets out all the organisations that were met and all the evidence that was looked at. As I said earlier, we have reflected on that evidence. After I had come into post and had the meetings and looked at the evidence, I had some key decisions to make, one of which was on age. I looked at that issue in a lot of detail, and on the basis of the evidence on things such as the age of legal responsibility in Scotland and the evidence that was given by young trans people in particular, I found that 16 was the appropriate age. The areas of annual reporting and costs were also raised during those discussions.

The central premise of the bill has remained the same, and that is that we do not believe in the medical model. The bill uses a simplified, demedicalised model of statutory declaration, and that is very similar to the model that has been taken forward in other countries. We have not moved from that central premise of the bill, but we have listened to evidence that has been set out in relation to areas such as age, cost and reporting.

As I alluded to earlier, this was probably the area to which I gave most consideration. Clearly, moving away from the current age of 18 for the process to 16 is a significant step, so we looked at international comparisons. In some cases, the age is 16 and in others, 18; in some cases where the age is 16, additional measures are required for 16 and 17-year-olds, while others do not require such measures. We had a range of international examples to look at.

We then brought it back to two other considerations, the first of which was the Scottish legal context. In other words, what have we done in Scotland with regard to other legal responsibilities? In that respect, the Age of Legal Capacity (Scotland) Act 1991 was really important, because it gives legal capacity to 16 and 17-year-olds to enter into any transaction having legal effect. That was, for me, quite an important area of the law, in that it fits in quite well with the ability to make this kind of statutory declaration.

The other consideration was the evidence of young trans people themselves, who were saying that, at 16 and 17, they were at a pivotal point in their lives. After all, they were about to enter college, university or the world of work; they wanted to be able to do that in a way that aligned with how they were living their lives, and they wanted their documentation all aligned instead of differing. I thought that that argument was quite powerful.

Taken in the round, that was why I made that decision.

I was going to say that how meetings are recorded and how the committee manages its business are not matters for me.

On prisons, the committee received some very detailed evidence from the Scottish Prison Service. How a trans prisoner or anyone else in our prisons is managed is obviously a matter for the Scottish Prison Service. I cannot comment on another country’s prison service, but I know that the Scottish Prison Service is already making decisions about how to manage trans prisoners absolutely on the basis of an assessment of the person’s risk to themselves and others. It is already the case that trans women may be held in the male or the female estate, depending on that risk assessment, and 75 per cent of trans men are held in the female estate in recognition of the risk to themselves, which has been deemed to be a factor. The Prison Service does that already; that is the current process and it will continue after the bill is passed.

There is a review on-going in which the Prison Service is looking at its gender identity policy and whether any further changes need to be made. The review is looking at evidence gathered from the prison population, service users and stakeholders and the Prison Service is looking to publish an updated policy thereafter, once it has gone through that process.

Let me be very clear: the Scottish Prison Service has made it very clear that whether someone has a gender recognition certificate is not the issue. Someone could have a gender recognition certificate and still be placed in the estate that is not in line with their acquired gender, if that is the risk that is assessed. The Prison Service could not be clearer about that. It is already operating that policy and has done for some time.

I have made clear my views. Because of the process—the consultations on the bill and all that went on around scrutinising it before it even reached the committee—we know what the issues are and I think that everybody has had a chance to give their view. I do not think that any major changes would be made or that there would be any further benefit from delaying it any further. We really need to get on with this—that would be my view.

We will work with National Records of Scotland to provide guidance to applicants on the application process. NRS will look at how it can confirm some documentation, if that is required. It is a statutory declaration process. If NRS has concerns, it can use various methods to check documentation, should that be required.

Do you have anything to add to that, Peter?