Chamber and committees

The Scottish Human Rights Commission talked about that when you saw it last week, and it said that, based on international evidence and what has gone on in other countries in a position not dissimilar to our own, there is no evidence of widespread self-exclusion from services. I think that it is a matter of fear and concern rather than actual threat, but that is important in itself because we do not want to people to be concerned and worried. Therefore, we all have a responsibility to be clear with people about what the bill does and, almost more important, what it does not do. None of the protections that are already in place are affected by this in any way whatsoever.

Violence against women and girls emanates from predatory men and there is no evidence that predatory men feel the need to try to obtain a gender recognition certificate in order to be predatory and abusive. Of course, GRCs are not necessary for accessing areas such as toilets, changing rooms and other spaces that are not restricted as they would be for exceptions under the 2010 act. As I said earlier, trans women and trans men will have been using these spaces for many years and, had that been a concern or an issue, I think that we would have heard about it before now.

Having said that, I am sympathetic to post-legislative annual reporting. Also, if the committee feels that having a review that is able to take stock of all these issues is important and recommends doing that, it is something that I would look quite favourably upon.

First, I agree that trans rights are human rights. What we are trying to achieve here is about recognising—and I think that this was put across strongly by the Scottish Human Rights Commission—that everybody’s human rights are all-important collectively and should not be seen as somehow in opposition to one another. That is an important point.

On the public discourse, we have already had a discussion this morning about whether there should have been more time. I take your point that you feel that there has been too much time. I think that we have probably landed somewhere in the middle. It has been well discussed and well consulted on and we have now got to the position where we can look at the detail and make decisions.

It is very difficult to change the public discourse on social media and in some sections of the mainstream media. In some places, it has perhaps become a wedge issue against a tiny number of people who are extremely vulnerable and really just want to get on with their lives, which is why the bill is important.

In terms of the public discourse going forward, once the legislation is in place, people will see that those it affects are the tiny number of people it directly affects—in other words, those who are going to obtain a gender recognition certificate that can reflect how they have been living their lives anyway. We can see that in practice in the other countries that have done this, which are growing in number—I cited Spain, which is now looking at it as well—none of the concerns, some of which were expressed in those countries as well, have come to fruition. That should give us some confidence that people may be assured by that.

Finally, as I said in earlier, I am not sure that what is in social media really reflects where public opinion is on this matter. The BBC poll that I mentioned showed that young people, who are overwhelmingly more supportive of the trans community in all the polls that are done, and women are more supportive. That is perhaps food for thought. Some of the polling that has been done might show us a different view from the one that social media would have us believe.

We will continue to do this. If there are other things that we as a Government can do to improve the public discourse, of course we will do them. If the committee has any suggestions in that regard, I am happy to look at them.

I think that, for consistency and fairness, the reflection period should be the same. From memory, I think that the children’s commissioner was probably against having a reflection period at all, but I also think that the commissioner would be quite firmly against having some differential in the reflection period.

If we agree that 16 and 17-year-olds should be able to obtain a gender recognition certificate through statutory declaration, those people should be treated as having the same maturity as everyone else has when it comes to the reflection period. Having said that, there will be the additional guidance and support structure around 16 and 17-year-olds. We think that that is the more appropriate additional support, which someone over the age of 18 might not require.

An issue of which we are mindful is people who are nearing the end of life. In those circumstances, three months could, frankly, be a long time. We are mindful of the importance for many people of their death certificate reflecting how they have lived their life. If the committee made a recommendation in that regard, I would be completely sympathetic to that.

People have been able to change their sex through the 2004 act since it came in. They were already able to do that, so any prisoners we are talking about have already done that through the 2004 act, because this bill is not in place. If any of the people whom we are talking about have a GRC, they will have one through the existing 2004 legislation.

The point that I am making is that, for the Scottish Prison Service, if someone has a GRC it is not a pass for a trans woman into the female estate or for a trans man into the male estate. What matters is the risk assessment of that individual, and not just whether they pose a threat to other people but whether they are at risk themselves. You could clearly see in the case of trans men, in particular, why that might be the case, which is why 75 per cent of trans men are held in the female estate.

That is really a matter for the committee, not me. How the committee operates its business and the time that you allocate for the bill is a matter for yourselves, not me.

Living in an acquired gender generally means living your daily life in a gender that is different from your gender as recorded at birth. In the context of the bill, that is the gender in which a person is living when they make an application.

It is important to recognise that living in the acquired gender is an existing requirement under the 2004 act. I do not think that that causes widespread confusion among applicants currently, so we do not envisage that that will be the case with the bill.

It is important to say that the requirement is not about dressing or looking a certain way; it is about the ways in which a person might demonstrate their lived gender to others. Ultimately, interpretation is—

Yes, I can. I was just going to say that examples include consistently using titles and pronouns in line with the acquired gender; updating official documents, such as a driving licence or passport; updating utility bills or bank accounts; updating the gender marker on official documents, such as a driving licence or passport; describing themselves and being described by others, in written or other communication, in line with the acquired gender; and using a name that is associated with the acquired gender. Of course, a change of name is a personal choice and not a requirement, but it is an example.

The gender recognition panel that currently exists—it will no longer, if the bill is passed—advises in its guidance that examples might include a person having changed the gender marker on their passport and driving licence, or that their friends, family and employer know their gender.

I hope that that is—

First, it will be for the other parts of the UK to decide on their own systems, and the UK Government’s recognition of Scottish GRCs will be a matter for it to consider.

There are some fundamental rights that will remain the same—rights that are enshrined under the Equality Act 2010 and apply to people whether or not they have a GRC. Those would be everyday things such as people’s rights at work and in any interactions with public bodies. Those remain the same whether someone has a GRC or not, because they are protected under the 2010 act.

I will ask Peter Hope-Jones to pick up on the specifics.

I am aware that Shirley-Anne Somerville also undertook consultation and met a number of organisations. Peter Hope-Jones was closer to that process than I was, but I understand that the three-month reflection period was one of the areas that emerged from that. Peter can maybe say more about that in a second.

There has also been ample opportunity for written comments, all of which have been looked at and considered. I undertook a round of engagement once I came into the post and had got my head around the extent and detail of this complex area. I held personal meetings with organisations from both sides of the argument around the bill. One of the areas that I looked at in a lot of detail was whether the minimum age of applicants should be 18 or 16. I gave that a lot of consideration. I looked at all of the views on that and, as I said in my statement, the reforms are finely balanced because of the differing views. The commitment to annual reporting came directly out of that round of engagement with organisations, because I was being asked how we would know how many GRCs had been issued, whether there had been a spike, and what the pattern was. That was an absolutely fair point, so we agreed to put that in the annual reporting requirement.

The other area that was changed was the cost of applying. Some organisations in favour of the bill said that they thought that having a cost might be prohibitive to people, so we listened to them and we removed the cost on that basis. Those are two examples that came directly out of that round of consultation. Peter is best placed to talk about what happened before that, because obviously I was not in post then.