Chamber and committees

The EHRC has raised a number of issues in relation to its own position on the bill—which, obviously, has changed—and a number of other matters. We have had a significant amount of correspondence with the EHRC as we have tried to understand the nub of its concerns. I am mindful that the Scottish Human Rights Commission has, likewise, had quite an extensive correspondence with the EHRC to understand the evidential and legal basis for some of the concerns that it has raised. The SHRC is continuing to correspond with it, as are we, to understand what lies behind those particular concerns. Peter might want to come in on the specifics.

We would want to pick up that issue with health colleagues. Peter Hope-Jones might want to add some detail. It is a fair point.

No. In cases where there might be criminal investigations or concerns about criminality, that information would be disclosed. Those are the kind of circumstances in which there would be disclosure.

I have tried to speak as much about what this bill does not do as I have spoken about what it does. I have said many times that the bill has no impact on the Equality Act 2010. It could not have, because the 2010 act is reserved, and we would not want it to, because we think that the exceptions are important.

To be honest, we all have a responsibility to try to set out not only what the bill is about but what it is not about. It is difficult to do that on social media, because their nature means that it is difficult to use them to have a conversation. We have continuously tried to put across key points in terms of our interaction with the mainstream media. When I made the statement about the legislation in Parliament, I tried to say as much about what the bill’s purpose was as I said about what its purpose was not.

There are always lessons to be learned when we do anything, and we will always try to ensure that we learn them. However, the discussion around this issue is polarised and, even if you say things over and over again, that does not mean that people will accept what you say. There is not an awful lot that I can do about that, other than to reiterate the case and try to reassure people about it.

Ultimately, I hope that people’s concerns will be allayed by what happens in practice after the bill becomes law, as I hope it will. It should also be reassuring for people to see that other countries that have gone down the statutory declaration route have not seen some of the concerns that were expressed in those countries come to fruition.

My hope is that, once people see the legislation working in operation, they can see the tiny numbers that are involved and the fact that it is not working in the way that some people are concerned about, their fears will be allayed.

Earlier, Peter Hope-Jones said that we understand that the senator’s concerns related to Ireland’s census questions. Is that right?

I will come back to that specific point in a minute. Earlier, I touched on where the evidence is on the matter. The evidence was led by the Scottish Human Rights Commission, which said that there was no evidence from other countries about people self-excluding due to feeling uncomfortable. In countries where there is a statutory declaration process, there was no body of evidence to support that.

On the specific issue, people do not need a gender recognition certificate to go into toilets and changing rooms, so it is not directly related to the bill. However, I saw a piece of evidence that chimed with me about how changing spaces have changed over the years, and have moved away from being communal facilities to being more private spaces, which benefits everybody. I accept that there might be some facilities that are on a journey in that respect, but that is more about how retailers and shopping centres provide facilities. I think that people are keen to have private spaces, such as cubicles, rather than there being one changing room—which, when I was young, was a horrendous experience. We have moved a long way away from that, which is a good thing. The issue is not directly related to the bill; it is more about people’s expectations when they access services.

That would not be the case if, when the person applied for their gender recognition certificate, that was clearly and honestly what they wanted to do. They would not be making a false declaration because, at that point, that was their intention. If, a year down the line, someone changed their mind and wanted to use the process to detransition—for lack of a better word—they would still not be making a false declaration. Clearly, at the time, it was an honest view of where they were in their life—they were not trying to mislead or make a false declaration. Therefore, they would not face a fine or imprisonment; that would happen only if they make a false declaration.

Good morning, everyone. For nearly two decades, the Gender Recognition Act 2004 has provided a route to legal recognition for trans people. However, evidence shows that the process can be lengthy, invasive and demeaning. Since the act was introduced, the World Health Organization has recategorised gender identity health, and has made it clear that being transgender is not a mental ill health condition and that classifying it as such can cause distress.

Only around 6,000 people—of an estimated half a million trans people in the United Kingdom—have a gender recognition certificate. The aim of the Gender Recognition Reform (Scotland) Bill is to reform the process to bring it more into line with current understanding and international best practice, and to remove barriers to trans people accessing their existing rights.

I know that there are deeply held views on transgender issues, and I appreciate that reservations about the bill are often connected with legitimate concerns about the violence, abuse and harassment that women and girls face in our society. As I have said before, trans people are not responsible for that abuse, and often face it themselves. I am also aware that many people view the reforms as being vital and overdue.

It is important to focus on the reforms that are contained in the bill as introduced, and to be very clear about what the bill does. It will introduce a new process for obtaining a GRC, which is open to people who were born or adopted in Scotland or are ordinarily resident here. It will remove the requirement for a medical diagnosis of gender dysphoria, reduce the minimum period of living in the acquired gender from two years to three months while introducing a new three-month reflection period, and lower the minimum age for applying from 18 to 16.

The process of obtaining a GRC will remain a serious and substantial undertaking. Applicants will still have to make a statutory declaration that they are currently living in, and intend to live in, their acquired gender for the rest of their lives. Under the bill, offences relating to making a false application carry potential penalties of up to two years in prison.

Based on international comparison, we estimate that the number of Scottish GRCs might rise from around 30 to between 250 and 300 a year. That is what the bill will do.

I know that there has been some misunderstanding about what the bill will not do, and I also want to be very clear on that. The bill will not change the protections that are set out in the Equality Act 2010. It will not change the exceptions in that act that allow single-sex services to exclude trans people where that is a proportionate means of achieving a legitimate aim, including where those trans people hold a GRC.

The bill will not change or remove women’s rights. It will not make changes to how toilets and changing rooms operate. It does not redefine what a man or a woman is, and it does not change or expand trans people’s rights. The bill will not change the effect of a GRC, which is that the individual is legally recognised in their acquired gender.

The bill will not change the policy or laws of England or any other country; it is for other Governments and Parliaments to decide how GRCs are recognised in their jurisdictions. The bill will not change the way that gender identity healthcare is provided or make changes to public policy, including national health service patient care. It will not alter practices for collecting or processing data, including data relating to crimes. It will not change the way that Scottish prisons accommodate the people in their care, and it will make no changes to women’s sport, whether professional, amateur or in schools.

As the committee has already heard, the development of the bill has involved some of the most extensive consultation that has ever been undertaken by the Scottish Government. I have personally met a wide range of interested parties, and I know that the committee has also heard from a wide and varied group of organisations and individuals during its scrutiny sessions.

Some of those people support the bill. Others are opposed to it, and I am aware that I am unlikely to change their minds with anything that I have to say today. However, that does not mean that I have not listened to and considered their views, just as the committee will have. I commend the respectful and considered manner of everyone involved in the process.

I remain of the view that the reforms that are set out in the bill strike an appropriate balance in improving access to important human rights while providing a robust and serious process that is not to be undertaken lightly. Nonetheless, I look forward to hearing the views of the committee at the end of its stage 1 consideration, based on the evidence that it has heard. I am happy to take questions.

The Children and Young People’s Commissioner Scotland was clear in thinking that young people should be involved in the development of the guidance, to ensure that it is clear and straightforward. There is merit in that. The registrar general will have a particular role in ensuring that people understand what is in the guidance. They can offer face-to-face meetings, as I said.

On the role for organisations other than the registrar general, that is about further support for a young person, beyond just support to understand the process. That is where other organisations could have an important role; the registrar general would signpost to those organisations. In the development of the guidance, I envisage that organisations will be part of that signposting.

On the money, the bill sets out what we think the registrar general’s operating costs will be, but the door is not closed if it is shown that further resources are needed, either for the registrar general or for other organisations that will support 16 and 17-year-olds to work their way through the process.

There is lots of scope for young people to be involved in developing the guidance. I will be happy to keep the committee informed about progress in that regard, if that would be helpful.

I think that that is assumed, given that the Age of Legal Capacity (Scotland) Act 1991 establishes that young people from 16 onwards have the ability to enter into legal contracts. I know that there are various ages for various things—I understand all that—but we have agreed that, from 16 onwards, young people are able and have legal capacity to make such decisions for themselves.

There are issues for the registrar general to do with capacity in general, not just in relation to young people. If the registrar general were concerned about anyone’s capacity or about someone having been coerced in any way, they would be able to take steps through the sheriff court and so on.

We think that the approach to young people is very much in line and consistent with the age of legal capacity.