Chamber and committees

Application for a GRC is still a very serious step to take: it is a statutory declaration, in which the person declares that they are going to live the rest of their life in that gender. The international evidence that has emerged shows that there is no evidence of changes in laws being misused by what you described as “bad-faith actors”. The evidence of the Scottish Human Rights Commission is very strong on that: it could find no evidence of the misuse of the process.

There are quite hefty penalties for misuse. As I set out in my opening remarks, someone who makes a false declaration will feel the full force of the law.

We just need to understand what the EHRC’s concern is, because the rights of transgender people across the UK are enshrined in the Equality Act 2010, whether or not someone has a GRC. The fact that we are changing the process for obtaining a GRC does nothing to alter those fundamental rights that are enshrined in the 2010 act, so we do not understand the relevance, really. Those rights exist no matter what process a country has for obtaining a GRC.

I do not think that there is evidence to support that. In fact, Close the Gap has provided evidence that does not support such concerns.

The numbers are so small that I do not think that they will have a statistical impact. As for the gender pay gap, the work that is going on through Close the Gap and the work on fair pay that the Scottish Government is leading, I do not think that the bill will have any impact at all on those—or, indeed, on public life. As I said, the number of people we are talking about is very small.

The Scottish Prison Service is clear at the moment that having a GRC does not give someone any enhanced rights over where they are placed; that is all down to the risk assessment. Again, I cannot comment on other jurisdictions and whether that is different in England—that is obviously not a matter for me—but the Scottish Prison Service’s position is very clear. The review is to look at whether there is anything that the SPS should be doing in addition to what it is currently doing around the management of trans gender prisoners. The evidence could not be clearer that the Prison Service already places people where it thinks that it is appropriate for them to be placed, whether or not they have a GRC.

I do. I reiterate that the bill does not change any of that.

In those circumstances, the simplest and best way is, in essence, to take the same approach and to submit an application under the same process. The offence is about knowingly making a false statutory declaration. In other words, if at the time of making a statutory declaration, you intended to live permanently in your acquired gender, you would not be committing an offence if, for whatever reason, your intention to do so subsequently changed at some point in your life.

You can draw a comparison with marriage, which involves a lifelong commitment and a certain intention at the time. Sometimes, though, that relationship comes to an end. That does not make the marriage itself false; it is just that someone has reached a different point in their life.

I think that that is the simplest way of enabling someone who changes their view at some point in their life to go through the process. I should say that it does not happen very often; Peter Hope-Jones might have been about to say this, but the evidence from other countries is that a very small number of people do it. We are not talking about lots of people.

The requirement in the bill is that the applicant must be the subject of a Scottish birth or adoption register entry or ordinarily resident in Scotland, as you said. Applicants will have to make a statutory declaration to that effect. As you will know, “ordinarily resident” means that the person lives in Scotland with only short periods away. Residence must be voluntary, for settled purposes and lawful. That is a common law concept, which is routinely used in statute; it is not particular to the bill but is understood in many statutes.

It is worth reiterating that, if someone knowingly makes a false statutory declaration that they are ordinarily resident in Scotland, they could be committing a criminal offence. We will work with National Records of Scotland to provide guidance to applicants, to ensure that they fully understand that.

I noted the evidence from the Scottish Human Rights Commission. Your point about cross-border impacts takes us back to the conversation about what a GRC does and does not do, because someone has the same protection under the gender reassignment characteristic whether or not they have a GRC. If they go from Scotland to England, they will have the same protections in relation to their gender reassignment in school, work and medical contexts, whether or not they have a GRC.

For all those reasons, I do not foresee tourism—I think that that is the word you used—being an issue.

The whole area of annual reporting was initially driven by concerns—to which we responded—about being able to track and monitor the number of GRCs being issued. That was the starting point, but I am certainly open minded as to whether such reporting would go further. It would have to be proportionate and gather things that could be gathered, so we would have to think about that, but I am certainly open to suggestions about what else might be reported annually. In Ireland, there is annual reporting of the numbers and in a few other areas.

I am also open minded on a post-legislative review, if that is to be a committee recommendation. We would need time for the new system to bed in. There will inevitably be a bit of a spike in the numbers, as there was in Ireland in the first couple of years, as people who were already living in their acquired gender wanted to go forward with their GRCs—it plateaued after that. I suspect that it would probably be the same here, but it would be useful to have the numbers through annual reporting. If a post-legislative review wanted to gather information more broadly, we would need a bit of time to set up systems to gather information on elements that it might be helpful to review.

The fact that so few people in the trans community—only 6,000 people, compared to the estimated number of up to 500,000 people in the UK who are trans—have obtained the gender recognition certificate confirms the evidence that we have heard about the process, which is that it is really off-putting to people. A process of statutory self-declaration will enable people to gain legal recognition of the way they have been living their lives for many years. Many trans people will have already changed other documentation.

I suspect that the spike that Ireland saw when it changed the process to one of statutory self-declaration probably represents people who had been living in their acquired gender for many years who took the step of gaining legal recognition. The numbers settled down after that spike.

One of the most powerful pieces of evidence that I heard was from an older person who said that the most important thing to come out of it all was that they would be able to have their death certificate record the gender that they had lived their entire life in. For the tiny number of people whom the change will affect, it could be really important. That evidence highlights that it is a very important and very personal thing. Hearing about the importance of having end-of-life recognition of the gender that a person has lived their life in was very powerful.

The registrar general will have an important role, not least in making sure that the guidance is clear and supportive and explains things in clear language. Work on that guidance will obviously involve a number of organisations. For example, the Children and Young People’s Commissioner Scotland gave evidence that the language used in the guidance needs to be clear for 16 and 17-year-olds. There would potentially also be signposting to other organisations that are beyond the registrar general’s ambit for providing guidance.

Peter Hope-Jones might want to add something about making any changes to the regulations.