Chamber and committees

On the basis of what Pam Duncan-Glancy said, I am sympathetic to amendment 126, and so is my colleague Pam Gosal. However, I want reassurance from the cabinet secretary. Are you expecting the registrar general to make a clinical judgment on whether a person is terminally ill, rather than a healthcare professional?

Amendment 26 seeks to retain the requirement to provide evidence to accompany an application for a GRC. It will specifically retain sections from the 2004 act to ensure that legitimate concerns of parents, young people and gender identity experts regarding the removal of safeguards are addressed. The Gender Recognition Reform (Scotland) Bill would remove the requirement for medical evidence and would reduce the period for which applicants must live in their acquired gender before applying for a GRC from two years to three months. The Scottish Government wants to have a system of legal gender recognition that is based on statutory declaration rather than a gender dysphoria diagnosis.

Can the cabinet secretary cite evidence from other countries where the impact of reform has been evident from these emerging policies? Can she comment on the prediction that removing a gender dysphoria diagnosis will not extend GRCs to a much larger and more diverse group, including predatory men? How will vulnerable individuals be supported without medical support? How will undiagnosed conditions be picked up? What evidence does the Scottish Government have that dropping the requirement to provide medical evidence is best for everyone? Surely that stance is entirely subjective.

Finally, why does anyone without gender dysphoria need to change their sex in law? NHS guidance says:

“social transition should only be considered where the approach is necessary for the alleviation of, or prevention of, clinically significant distress or significant impairment in social functioning and the young person is fully able to comprehend the implications of affirming a social transition”.

Doctors caring for youngsters who are distressed about their gender have been told that it is not a neutral act to help them to transition socially by using their preferred new names and pronouns. The draft guidelines say that doctors should carefully explore underlying health problems, including mental ill health, amid concerns that the NHS is rushing children on to irreversible puberty blocker medication.

A significant proportion of children and young people who are concerned about or distressed by issues of gender incongruence experience co-existing mental health, neurodevelopmental and/or family or social complexities in their lives. A number of doctors, including Dr Antony Latham, the chair of the Scottish Council on Human Bioethics, Dr Anne Williams, the vice-chair, and Dr Calum MacKellar, the director of research, said:

“Unfortunately, the Stage 1 Report on the Gender Recognition Reform (Scotland) Bill, which was published by the Human Rights and Civil Justice Committee of the Scottish Parliament on the 6 October 2022, has not sufficiently considered the evidence of mental disorders which are often present with gender dysphoria. As a result, the recommendations given by the majority of MSPs preparing the report are unsafe and should be rejected ... In summary, the majority position in the report from the Human Rights and Civil Justice Committee is unworthy of the high expectations of the Scottish Parliament and the Scottish people since it is unreasonable, unprofessional, and does not sufficiently address the biomedical evidence. Moreover, if the Scottish Parliament does accept the majority view of the Committee in removing the requirement of a medical opinion before gender transitioning takes place, this will ... lead to some young persons being harmed”.

They also said:

“Moreover, research shows that many children with gender dysphoria have significant psychological and psychosocial vulnerabilities ... Thus, without a medical appraisal, it is very likely that many young persons may embark on risky life-changing procedures which they do not understand. This is all the more concerning since follow-up studies indicate that, overall, the distress experienced by young people affected by gender dysphoria disappears in about 85% of cases either before or early in puberty though the rates in ... studies vary widely.”

With regard to living in the acquired gender, three months is too short a time for such a life-changing decision, especially for 16 to 17-year-olds, who are going through significant changes, such as puberty, and doing exams. Furthermore, living in the acquired gender for just three months without a diagnosis of gender dysphoria might not be enough time for an individual to seek medical help or support with mental health, if needed.

It appears that many stakeholders are concerned that clarity is required on what living in an acquired gender even means. A period of two years provides sufficient safeguarding.

The bill as drafted will extend the ability to obtain legal gender recognition to 16 and 17-year-olds. My amendments seek to retain the current minimum age required to apply for a gender recognition certificate at 18, based on a statutory declaration and without any form of medical oversight.

My concerns and those of my colleagues relate to lowering the age to below 18 in Scotland. I recognise that 16 is the age of legal capacity in Scotland. However, higher age limits apply to several matters that are of less significance than changing legal sex, such as purchasing alcohol or cigarettes, getting a tattoo and driving a car.

Recently, the Scottish Government sought to incorporate the United Nations Convention on the Rights of the Child into domestic law. The UNCRC defines anyone under the age of 18 as a child. Susan Smith from For Women Scotland said:

“people are not cognitively mature until they are about 25.” —[Official Report, Equalities, Human Rights and Civil Justice Committee, 31 May 2022; c 27.]

Other countries take a more conservative approach to the age limit for applying for a GRC. In Denmark, for example, one must be 18 to legally change gender, while in countries such as Belgium and Argentina, parental consent is required for those under the age of 18.

Furthermore, the Scottish Government is pursuing an inconsistent approach to defining maturity. Scottish sentencing guidelines refer to the sentencing of those under 25, claiming that they are not cognitively developed and

“have a lower level of maturity, and a greater capacity for change”.

According to the Equality and Human Rights Commission, the change in the bill

“increases the likelihood that trans pupils with GRCs are present in educational establishments in Scotland. This has implications for the operation of the education provisions of the Equality Act – its specific exceptions to direct discrimination for education providers would not apply in the same way as they do now (because people under the age of 18 currently cannot obtain a GRC).

At present, the law allows schools to take a proportionate approach to balancing the needs of trans pupils with those of other pupils.”

It goes on to say that the changes proposed in the bill might require educational establishments in Scotland to

“treat trans young people with a GRC as having their acquired gender for all purposes, including in a single-sex school, leaving the school potentially open to direct discrimination claims if it sought to balance the needs of trans and other pupils.”

I would welcome the minister providing clarity on that point about the position for single-sex schools, should the bill be passed unamended.

The Scottish Government has dismissed the findings of Dr Hilary Cass’s interim review as not being relevant to Scotland, which is contrary to the stance taken by the First Minister in comparing NHS England with NHS Scotland when answering questions at First Minister’s question time. We share the view of stakeholders that it is prudent to wait for the final conclusions and recommendations of the Cass review before moving to make legal recognition of gender available to 16 and 17-year-olds in Scotland.

The Scottish Government fails to recognise that providing a route to a change of status in law is a form of social transition and is therefore not a neutral undertaking. The Scottish Government and the majority of the committee appear determined to deny any risk that affirming a young person’s self-declared gender identity might encourage them on to a medicalised pathway in a setting where the evidence base is lacking.

Given the stakes, every law that we make must be supported by robust analysis. We think that there are hard questions to ask about Scotland’s gender identity services for young people, especially considering the lack of robust data on clinical outcomes. In the absence of better information about the cohort of 16 and 17-year-olds experiencing gender incongruence, MSPs are being asked to make a very significant decision affecting a vulnerable group, based largely on some young people’s strongly—and no doubt genuinely—expressed desires and the amplification of those voices by adults who are strongly committed in principle to an affirmation-based approach.

The basis appears shaky in assuming that decisions here will have no spillover effect on national health service services and that any emerging legal risks can be ignored. It does not appear unreasonable for MSPs to decide that NHS Scotland needs time to consider the final Cass review recommendations before we consider lowering the age for a GRC. The Bayswater Support Group for parents put it like this:

“Our children deserve the same level of care and safeguarding as their English counterparts and it is incumbent on our lawmakers to consider the needs of vulnerable young people when considering this bill.”

I urge members of the committee to consider the crystal-clear arguments that I have presented today and to support the retention of the current minimum age of 18 required to apply for a GRC.

I move amendment 18.

Can you clarify the point that you made about notaries public? I presume that that referred to witnesses of declarations of living in the acquired gender. Who are those notaries public? Do they include city councillors?

Thank you, cabinet secretary. So—despite some murmurs from your officials to the side—city councillors can be included in that.

Although I understand the motive for Carol Mochan’s amendment 117—to try to implement a safeguard in the process—we will not support it, as we cannot envisage that NHS or other services will miraculously improve, because the Scottish Government’s reforms of self-identification will open up our medical services and the other services included in Carol Mochan’s amendment to a wider group of people, therefore putting them under more pressure.

Christine Grahame’s amendments are creative but ill thought through. How can we, as elected members in this place, guarantee that young people who are at a vulnerable age generally receive the support that they need? I am disappointed that the Scottish Government is attempting to use young people as collateral damage to water down the bill to appease their own Scottish National Party rebels.

I am disillusioned by the cabinet secretary’s sceptical approach. The Cass review is a key piece of work. The cabinet secretary has not taken heed of the interim review. I agree, however, that we should consider what the full review says.

Living in an acquired gender for at least three months is an arbitrary figure, plucked from nowhere, without evidence, like the other three-month figure in the bill.

Martin Whitfield’s amendments are flawed, because they presume that the registrar general has the ability to determine capacity, which is something that was never explored in evidence during conversations on the statutory declaration.

On a positive note, I welcome the offer from Fulton MacGregor and Pam Duncan-Glancy to work together in the future.

I press amendment 18.

I thank Pam Duncan-Glancy and Tess White for their constructive amendments. We are happy to support the introduction of asylum seekers to the bill, as asylum seekers can be classified as “ordinarily resident” in Scotland. I also urge members to support my colleague Tess White’s amendment, which would strengthen the definition of the term “ordinarily resident” to provide clarity for everyone, including asylum seekers.

My colleague Ariane Burgess asked a question about high nature value land and biodiversity. Morag, you have just mentioned looking at the funding depending on what needs to be protected in terms of that value. You did not describe it as such, but Patrick Krause describes it in that way. I wonder how NatureScot came up with the criteria. Are they based on the number of geese that are predicted in the count; on the loss of value of the crop, because you also said that you pay compensation; or on the loss of biodiversity value? You said in your previous answer that they are not based on high nature value. Is there some contradiction there?

The question is for Rae McKenzie. In an earlier answer, you talked about not having systematic monitoring. I presume that that was about the count, although I am not quite sure what you meant by it and whether I have that right. Could you clarify that?

Also, given the dire threat of avian flu right now and the fact that NatureScot has already set up a surveillance network for it, is there any plan for NatureScot to merge the two activities to monitor what has been effective in the pilot projects on control of migratory birds and the natural deaths of migratory birds through avian flu? To my mind, the two are not mutually exclusive.

Thank you. That was really helpful. Because the matter is part of our remit, it would be useful for the committee to understand what plans NatureScot develops with the academics.