Meeting of the Parliament (Hybrid)
Meeting date: Thursday, March 3, 2022
Agenda: Business Motion, General Question Time, First Minister’s Question Time, International Women’s Day 2022, Portfolio Question Time, Gender Recognition Reform (Scotland) Bill, Justice (Risk Assessment), Public Service Broadcasting, Decision Time, Correction
- Business Motion
- General Question Time
- First Minister’s Question Time
- International Women’s Day 2022
- Portfolio Question Time
- Gender Recognition Reform (Scotland) Bill
- Justice (Risk Assessment)
- Public Service Broadcasting
- Decision Time
Gender Recognition Reform (Scotland) Bill
The next item of business is a statement by Shona Robison on the introduction of the Gender Recognition Reform (Scotland) Bill.
Before I call the cabinet secretary, I will make a few brief remarks to the chamber. There is a great deal of interest in the work of the Parliament on the issue and it is, as always, important that we set the correct tone in our debate. The Parliament is charged with careful scrutiny of any proposed legislation and debates many issues about which people feel very passionately. In our debate, we must be able to hear each other and we must treat each other with respect, even when we disagree whole-heartedly. We can accept that there are opposing views while not sharing them. I am sure that all members will consider very carefully, as always, not just their choice of words but the spirit and tone in which they are delivered.
The cabinet secretary will take questions at the end of her statement, so there should be no interventions or interruptions.14:28
I have introduced the Gender Recognition Reform (Scotland) Bill, which proposes reforms to simplify the process for trans men and women to obtain a gender recognition certificate. It is now for Parliament to consider the bill.
Trans people in Scotland risk inequality, harassment and abuse simply for living their lives. They are among the most marginalised people in our society. Recent Police Scotland statistics show increases in hate crimes with a transgender aggravator.
As a society, and a Parliament, we have a responsibility to protect and support minority groups that are at risk of harm. Under the Equality Act 2010, we have a legal duty to address discrimination against people with the protected characteristic of gender reassignment and Scotland must have a system of gender recognition in order to comply with international human rights law.
The current system has been in place for the past 18 years. There is evidence from extensive consultation—two of the largest consultations ever undertaken by the Scottish Government and one from the United Kingdom Government—that applicants find the current system intrusive and invasive, overly complex and demeaning. Many trans people do not apply because of those barriers. That is why we propose to reform the process to make it simpler, more streamlined, more compassionate and less medicalised.
Our proposals for change and progress have caused discussion and debate. We know that some people have campaigned for such changes for years; we know that others have concerns. This afternoon, I will seek to allay some of those concerns by explaining what the bill does and—importantly—what it does not do.
It does not introduce new rights or remove rights; it does not change public policy or prevent single-sex services from being offered where appropriate; and it does not change rules or conventions that have been in place for years under the current system, for example in relation to access to toilets and changing rooms.
To anyone listening, I want to be clear that I will listen to the views of everyone, and to parliamentarians in and outwith the chamber, in a respectful manner throughout the passage of the bill. I urge everyone to do the same—as you did at the outset, Presiding Officer.
When it comes to gender recognition and wider issues that concern trans people, from healthcare to access to services, discussion has often become heated. I have often found the tone of debate on social media to be angry, unpleasant and abusive, both from trans people and from those who oppose gender recognition reform. I am concerned about the impact that that tone has, and particularly about how it further stigmatises and marginalises trans people in Scotland. That is not just an unacceptable way to behave towards other people; it is also unhelpful in getting a point of view across. We can disagree on issues without being offensive or abusive.
My meetings with stakeholders have shown that it is possible to have constructive, respectful conversations about the bill. I ask that the Parliament lead by example and that we work together to set a tone of respectful discussion with a focus on the specific reforms in the bill, just as we have done in the past, for example with same-sex marriage, which faced significant opposition at the time.
Trans people have been able to apply for legal gender recognition through a gender recognition certificate, or GRC, since 2004. Obtaining a GRC means that a trans person is legally recognised in their acquired gender and can obtain a new birth certificate that shows that gender. Not all trans people have a gender recognition certificate and no one is required to have one. The UK Government estimates that only around 6,000 of up to 500,000 trans people in the UK have a GRC.
Those without a GRC will often have made other changes, including to passports, driving licences and other official documentation. The bill’s reforms will move the law closer to how people already live their lives.
For clarity, the GRC provides the legal recognition of changing a birth certificate, and I say again that that right has been in place for 18 years. It is the mechanism for obtaining the GRC that we are changing—nothing else. We are not introducing new rights for trans people and, importantly, we are not removing or changing any for women and girls.
Central to the proposed reforms is the removal of the medical element of the process. We propose that GRCs be issued on the basis of statutory declaration made by the applicant, rather than on the basis of a tribunal judgment that is based on a diagnosis of gender dysphoria.
The World Health Organization’s revised international classification of diseases, which was approved in 2019, redefined gender identity-related health and removed it from a list of “mental and behavioural disorders”. It took that step to reflect evidence that trans-related identities are not conditions of mental ill health, and that classifying them as such can cause distress.
Moving to a system that is based on personal declaration rather than medical diagnosis will bring Scotland into line with well-established systems in Norway, Denmark and Ireland, and recent reforms in Switzerland and New Zealand. We are aware of at least 10 countries that have introduced similar processes.
The process will remain serious and substantial. Making a false application will be an offence with penalties of up to two years’ imprisonment or an unlimited fine.
The meetings that I have had over recent months while finalising the bill for introduction have allowed me to hear the range of views directly from stakeholders. I have heard from those who have concerns, and I have heard about the experiences of trans people who have been through the current process.
That work follows two of the largest consultations ever undertaken by the Scottish Government. The first, which in November 2017 sought views on the general principles of reform, received more than 15,500 responses, with 60 per cent agreeing that applicants for legal gender recognition should no longer need to produce medical evidence.
In December 2019, a second consultation on a draft bill received more than 17,000 responses. Although the consultation was qualitative, analysis of group responses showed that a majority supported reform.
We have published independent analyses of the consultations, providing valuable summaries of the range of views.
Through meetings that I have had, I know that we are not going far enough for some people and that others would like us not to introduce a bill at all. However, overall, the evidence from the consultations strengthens the argument for reform and shows that there is significant support for reforming the process of gender recognition.
Our consultations provide clear evidence of the negative impact that the current system can have on trans people. The UK Government consultation in 2018 and its LGBT survey in 2017 also provided such evidence. Many respondents describe the GRC application process as outmoded, discriminatory, overly complicated, humiliating and invasive, and, despite living in their gender for many years, many trans people have not applied for a certificate for those reasons. I have heard about individuals’ experiences of exclusion. I have heard of a trans woman who had transitioned nearly 30 years previously and therefore found the evidence requirements impossible, and of a trans man whose gender specialist had retired and whose national health service records had been lost, and who now cannot obtain a GRC despite having changed their passport and all other identification.
The analysis reports also set out the concerns of people who do not want reform. I know that some people are concerned about the potential impact on women and girls. I have met a number of people and groups, and I recognise that they feel deeply affected.
I am well aware of real and legitimate concerns about the violence, abuse and harassment that women and girls face in our society. However, trans people are not responsible for that abuse—indeed, they often face it themselves. We still live in a society in which, unfortunately, it is not hard to find sexist or misogynistic beliefs, and in which women and girls face violence at the hands of men. That is abhorrent and this Government is tackling it head on, providing support for services and focusing on prevention. We must be clear that all the evidence tells us that the cause of violence against women and girls is predatory and abusive men—not trans people. It is important that we do not conflate the two. There is no evidence that predatory and abusive men have ever had to pretend to be anything else to carry out abusive and predatory behaviour.
We are committed to advancing equality for women and protecting women’s rights. That commitment is not affected by our support for trans rights. We strongly support the rights and protections that women have under the Equality Act 2010, including the single-sex exceptions. That part of the act means that an exception is applied to the protected characteristic of gender reassignment. In practice, that means that trans people can be excluded from single-sex services in some circumstances, where that is proportionate and justifiable. The act’s explanatory notes gives an example of a group counselling session for female victims of sexual assault. The bill does not amend the 2010 act. Nothing in the bill will erode or undermine women’s rights.
Some of the concerns that I have heard relate to issues under the current system that, it is argued, will be compounded by our reforms. Such concerns include policies that are implemented by service providers for changing rooms and toilets. Other than for communal residential accommodation, the 2010 act does not apply exceptions specifically to toilets and changing rooms. Trans people can and do use those now, whether they have a GRC or not, and they have been using them for many years.
The bill’s proposals have no direct effect on single-sex spaces, but I have heard arguments that suggest an indirect effect on two grounds: that there will be a significant increase in people obtaining gender recognition, or that the bill will drive a wider social shift. Based on international comparison, particularly with Ireland, which introduced a similar process seven years ago, we estimate that the number of applications might rise from around 30 to between 250 and 300 a year. That is a small number in the context of the size of the Scottish population. I have considered that and agree that we should monitor the impact of the changes, as with all legislation. I have therefore introduced new provision requiring annual reporting, including on the number of people who apply for and obtain a GRC. I hope that that will provide some assurance.
On the second argument about a wider societal shift, it is true that society moves on and attitudes change. We have seen that already with same-sex marriage, civil partnerships and the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018. There is greater equality in and acceptance of how we live our lives, who we love and how we solemnise our relationships. That is surely a good thing.
The acceptance and better understanding of trans people is another positive shift in society. The recent BBC poll shows that the general public are more accepting on trans inclusion than a look at social media would suggest. That is particularly the case among young people and women. Like everyone else, members of the trans community have a right to live their lives without fear of prejudice and abuse.
The bill proposes that applicants must have lived in their acquired gender, but that the minimum period for that should be reduced from two years to three months, with an additional three-month reflection period. Some have argued for the requirement to be removed altogether, while others have argued for it to be kept at two years. Our view is that our approach strikes the right balance and provides valuable assurance.
We consulted on whether to lower the current minimum age for applicants from 18 to 16. We have carefully considered the issue, examining different views and evidence, and it is a question that is finely balanced. We have examined comparable systems in other countries, where a range of approaches are taken, including parental consent, a role for the courts and the requiring of evidence, and have considered those within a Scottish context. Those who have raised concerns say that under-18s are too young to make such an important decision. However, 16-year-olds can leave home, get a full-time job, change their name, consent to medical treatment, marry and vote.
Earlier this week, the Cabinet met the Scottish Youth Parliament, and members spoke eloquently about how young trans people feel excluded by a system that denies them access to legal recognition, particularly in the case of someone who wants to make the legal change before moving into further or higher education or employment.
We also recognise that such decisions are important, and it is vital that everyone who applies to the process, especially young people, fully understands and carefully considers the issues before doing so.
We have concluded that the minimum age should be reduced to 16, with support and guidance being provided to young people through schools, third sector bodies and National Records of Scotland. Under the oversight of the registrar general, National Records of Scotland will routinely give additional, careful consideration to applications from 16 and 17-year-olds. It will provide support on the process and, when necessary, will undertake sensitive investigation, which could include face-to-face conversations with applicants. Every 16 or 17-year-old who applies will be offered and encouraged to take up the option of a conversation with NRS to talk through the process.
One other change since the publication of the draft bill relates to the power to charge an application fee. There should be no financial barrier to achieving legal gender recognition. The draft bill included a power for the registrar general to set a fee for applications, but that has been removed. It is our view that no fee should be charged, and removing the power gives a clear commitment to that.
Four of the five parties in the Parliament made clear their support for reform in their recent manifestos. However, I recognise that, for individuals—as is the case within the public—there may be a range of views. I understand the views and concerns of those who oppose the reforms. Just because they disagree with the proposals, people should not be automatically labelled as transphobic. If everyone is respectful, we should all be able to discuss the proposals and our views in a civilised manner.
However, it is clear that transphobia exists and, as elected representatives, we must ensure that transphobic discourse does not seize on to the concerns that people have about the bill. It is in that context that it is so important that we discuss our differences of opinion and consider the evidence in a way that is measured and respectful. I will maintain an open-door policy for MSPs who want to discuss any aspect of the bill.
Following some of the most extensive consultation ever undertaken in Scotland, the Gender Recognition Reform (Scotland) Bill is now introduced. It sets out the Scottish Government’s proposal for a balanced and proportionate way of improving the current system. It is now for the Parliament to consider it.
I am happy to take questions.
The cabinet secretary will now take questions on the issues raised in her statement. I intend to allow around 30 minutes for questions, after which we will move on to the next item of business. I would be grateful if members who wish to ask a question could press their request-to-speak button or enter R in the chat function.
I thank the cabinet secretary for providing advance sight of her statement.
On behalf of the Scottish Conservatives, I welcome the tone of the cabinet secretary’s statement. I agree that we must be constructive and respectful when we discuss this important but polarising piece of legislation.
The Scottish Conservatives recognise that improvements to the system would be beneficial for trans people. We will constructively scrutinise the proposals in the bill that may help to make the system and the process easier.
However, as they stand, the proposals do not protect women’s rights and they do not offer enough protection for women’s safety. The concerns of women are legitimate and reasonable, and they are honestly and sincerely held. Will the cabinet secretary agree to listen again to the valid concerns of women who feel that their rights are under threat?
First, I thank Meghan Gallacher for her tone and for her offer of constructive scrutiny. That is very welcome.
Concerns about women’s rights and safety are of course sincerely held, and in my statement I have not suggested otherwise. We—I—have listened to those concerns. I understand them. That is one of the reasons why I am making this extended statement.
However, as legislators, we must always look at the evidence. The evidence is critical in relation to this issue. As I said my statement, all the evidence shows that the threat to the safety of women and girls comes from predatory and abusive men, not from the trans community.
In addition, if we look at the experience of the 10 countries that have in place similar processes—Ireland, for example, has had such provisions for seven years—we see no evidence that some of the fears that Meghan Gallacher outlined have come to pass. We have to look at the evidence. I am sure that the Parliament will do that, collectively, through its committee work and through our cross-party work. We must make sure that we look at the evidence. However, I welcome the member’s tone.
I, too, thank the cabinet secretary for advanced sight of the statement and for her tone.
This is about rights. The Parliament has been bold before—for example, in relation to section 2A of the Local Government Act 1986, which is also known as section 28—and we can, and I hope that we will, be bold again.
Trans people’s rights are human rights. Trans people must be treated with the same dignity and respect as everyone else. Right now, the process of getting a gender recognition certificate does not do that. It is lengthy and traumatic, which is why we support the reform of the Gender Recognition Act 2004 and the demedicalisation of the process.
However, we must acknowledge that, in the time that it has taken us to get here, the Government has allowed a vacuum to develop, allowing fear and ignorance to prosper. The cabinet secretary said in her statement that some people are concerned about the potential impact on women and girls. As the bill progresses, it is essential that everyone’s rights are protected.
The Scottish Government made a commitment to proceed in a way that would build consensus, but the reality is that discussion around the issue has become toxic for everyone involved and the Government has not done enough to address that. Will the cabinet secretary set out how she intends to move forward in a way that brings people together, limits the opportunities for more hateful and abusive rhetoric and ensures that we can look back on this moment with pride? Will she set out how we can turn this moment into something that we can be proud of?
I thank Pam Duncan-Glancy for her remarks and for her questions.
It has taken time to get to this point, and I think that we all understand the reasons: the complexity of the issue, and the two consultations. Getting to this moment has been a difficult process. That is the fact of the matter.
It is absolutely essential that everyone’s rights are protected. As I set out in my statement, it is as important to set out what the bill does not do as it is to set out what it does. I therefore remind people that the legislation is about changing the process by which someone obtains a gender recognition certificate; it does not change any of the rights that are already held under the Equality Act 2010. That is important. Specifically, on single-sex services, I made it clear that there are exceptions whereby transgender people—even those who have a gender recognition certificate—can, in certain circumstances, be excluded from those services.
It is important that we try to build consensus. Part of that involves focusing on the evidence and on what the bill proposes, rather than on some of the other matters that are not related to the bill but that sometimes circulate around the discussion of the issue.
Over the past few months, I have tried to meet people who have pretty different views on the bill: from those who wanted us to go further with the bill to those who did not want the bill at all. In those discussions, I tried to focus on what the bill is trying to do, rather than on the issues that are not related to it. I will continue to do that, and I will have an open-door policy. However, it is the responsibility of all of us in this chamber to focus on the bill and try to answer the questions as best we can.
I thank the cabinet secretary whole-heartedly for her statement, which is most welcome, as is the legislation that she has introduced. I also thank her for her clarity, because clarity is so important. I echo her hope that we can conduct our debate and scrutiny of the bill in an atmosphere of informed respect. I am confident that the solemn scrutiny of this Parliament will get it right.
I offer the unconditional support of my party for the reform of the Gender Recognition Act 2004. The current process is harmful, illiberal and fails to recognise the human rights of transgender people. Does the cabinet secretary share my belief that it is wrong that we still have to ask people to submit their gender to a group of people whom they have never met? Does she also agree that we need to design a system that is compassionate, simple and streamlined, and allows people to live their lives free from discrimination?
Yes, I would agree with that. I thank Alex Cole-Hamilton for his questions and the tone of his contribution.
It is important that we listen to the experiences of people who are going through the process, and in my statement I tried to give a couple of examples of people’s actual experience of that. It is interesting that, according to the UK Government’s figures, there are around 25,000 people in the trans community in Scotland but only around 600 of them have a gender recognition certificate. I see the bill as the law catching up with how people are already living their lives. Far more of those 25,000 would have wanted to obtain a gender recognition certificate, but the process, as outlined in my statement and by Alex Cole-Hamilton, puts people off doing that, and we can understand why. We should focus on that.
“Compassion” is an important word here. We have a good tradition, in this Parliament and in Scotland, of showing compassion. Trans people are one of the most marginalised sections of our community, and the bill is important to them. It is important in saying who we are as a nation, as well. I hope that we can go forward on that basis.
As has been said, the debate around gender recognition can at times involve the use of language that some people can find hurtful and derogatory. Following on from the remarks made by the Presiding Officer and all Opposition spokespeople, does the cabinet secretary agree that it is important for all of us, as Scotland’s elected representatives, to set the tone of the debate by setting out our positions and listening carefully to the views of others in a respectful and courteous manner?
Yes, I do, and I think that we have made a good start on that, through your remarks, Presiding Officer—if you do not mind me saying that—and the tone of the comments and questions so far. If we can keep that up, I think that we can lead by example in dealing with controversial and sometimes difficult issues. We have made a good start.
There has been much discussion and debate about the bill and the wider issues in relation to trans people. The tone of debate on social media especially has not been helpful. As I said in my statement, I think that we can try to reset some of the debate and its tone.
As I also said, I will listen to everyone’s views, and my door is open to members from across the chamber. I referred to meetings that I had with stakeholders, who have very differing views on the bill. The meetings with those who were most vehemently against the proposals were very courteous, and I thank those people for that.
The bill should not be portrayed as making people take sides or pitting people against one other. That is something that we, as parliamentarians, need to guard against. I therefore ask again that we in Parliament lead by example, as we are doing today, and work together, set a tone of respectful discussion and focus on the specific proposals that are actually in the bill.
The Equality and Human Rights Commission said that simplifying the law on gender could have consequences for data collection, participation and drug testing in competitive sport, the criminal justice system and many other areas. Is the cabinet secretary convinced that the impact of the bill in all relevant areas has been considered?
Yes. However, we continue to consider the impact of the bill, and the Parliament will do so as part of its evidence gathering and scrutiny of that evidence.
I am more than aware of the EHRC’s correspondence and communication about the issue. I continue to correspond with the EHRC, because I want to know which evidence base it looked at before changing position from encouraging all of us, a year ago—before the Scottish Parliament election—as its number 1 ask, to include the demedicalisation process, to quite a different position now. It is entitled to do that, but we are also entitled to ask what the evidence base is for that. I am sure that the committee and the Parliament will consider that, but I am happy to continue to keep that dialogue open.
I was glad to hear the cabinet secretary highlight that transgender people face harassment for living their lives and that some social media comments are just not acceptable. I have a constituent with a transgender child who has found some of the comments and misinformation about what the bill proposes very upsetting. Does the cabinet secretary agree that transgender people should be supported to get on with their lives without their human rights being prejudiced?
Yes, I agree with that. Trans people just want to be able to get on with their lives, as part of society, without facing prejudice and harassment. They want their legal documentation to reflect the way that they are already living their lives. That is a reasonable thing to ask and we should all work towards that goal.
As we have said a lot, the way that we talk about these issues matters. We know that a bad discourse on the issue has a direct effect on the trans community. I said in my statement that there has been a rise in hate crime with a transgender aggravator, which we should all be concerned about.
As with all debates on equality issues, it is really important to try to show empathy and understanding, and to appreciate that other people’s experiences and feelings may be different from our own but that does not make them less valid.
I absolutely agree with Rona Mackay. We need to listen to the voices of some of the most marginalised people in our society.
I want to ask about the interaction between section 22 of the Gender Recognition Act 2004 and the 2010 act exceptions. The consultation on the draft bill noted that a question was raised about whether section 22 of the GRA could make it harder to use the general occupational requirement exception. In a letter to me in November, the cabinet secretary said that the Government would consider whether further exceptions to section 22 should be made and whether the Government would issue guidance on section 22. No changes seem to be proposed in the bill that was introduced yesterday, so does the cabinet secretary intend to issue guidance? Would the guidance be issued during the progress of the bill?
First, guidance will be issued on a number of elements of the bill.
Let me be clear about the general occupational requirement exception. That does not change, because it is part of the Equality Act 2010. I can provide an example. If someone was working in the field of providing intimate care, it is, as is the case at the moment, absolutely legitimate for a patient or someone receiving social care to say who they do and do not want to provide that service. That is underpinned by the general occupation exception under the 2010 act. This bill does not change that at all. It remains as was. The important thing that I said in my statement was that the bill does not take any rights away. It does not give any more responsibilities or rights to anybody. What it does is to set out the change in the process for GRC, but the elements that I have referred to do not change at all.
I, too, welcome the tone of the comments made by members from across the chamber. It is very welcome indeed.
Does the cabinet secretary agree that the bill seeks to realise the rights of trans people and does not change the rights of anyone else? Does she agree that by standing together we further the rights of marginalised communities, as well as the resolve across society?
That is an important point. We have always achieved rights for each other when we have stood together to strive for further rights and equality. The bill is about ensuring the achievement of current rights by allowing trans people to have better access to their existing rights to legal gender recognition. It is not about giving new rights to trans people. As I have said before, the bill does not change anyone else’s rights.
The process to obtain legal recognition of gender has been around for 18 years. However, the consultation has shown that the current system is a barrier to many people who would otherwise apply. That is something that the bill will resolve.
I again stress the point that the elements and protections under the Equality Act 2010 remain—the exceptions are important. The Scottish Government supports those exceptions and the bill does not make any changes to them.
I thank the cabinet secretary for early sight of her statement.
We know that trans people in Scotland and in all parts of the world are at heightened risk of violence, harassment and discrimination, including human rights violations from bullying and verbal abuse to assault, rape and murder. Trans people are up to four times more likely than cis people to be a victim of violent crime.
The cabinet secretary has been clear about what the bill does and does not do. Can she reaffirm that the bill, as it progresses through Parliament, must not be used as an excuse to debate trans people’s right to exist and will she outline what we can all do to ensure that we do not undermine the safety and rights of trans people?
I agree that the bill is not about whether trans people should be able to live their lives as they wish. They have those protections explicitly under the Equality Act 2010, which has been in place for 12 years, and they have had the ability to obtain a gender recognition certificate for close on 20 years. It is important that we remember that the issues and the way in which we discuss them have a real impact on trans people.
As I said, hate crimes with a transgender aggravator recorded by Police Scotland have increased every year since 2014-15. That is not a good position and we need to change it. That is why it is vital that we think about the way in which we talk about such issues. Our language matters and how we conduct ourselves in the debate matters, too.
We are not setting one set of people’s rights against those of another. All rights matter. We are stronger as a Parliament and a nation when we promote and strengthen everyone’s rights.
I appreciate that the cabinet secretary stated that the legislation and the policy of self-ID does not change the protections afforded by the Equality Act 2010 in terms of single-sex provision. That is the aspect of the bill that my constituents ask about the most. I understand that many organisations and institutions are already operating based on self-ID and that it may well be working for them. That does not take away the need for female spaces for others. If the policy of self-ID is made law, how will the Government ensure that single-sex spaces and services for the purposes of upholding privacy and dignity, for example hospital wards, therapy groups, refuges and accommodation, are available to women and girls who need them?
I know that the issues that Ruth Maguire has raised about the potential impact of the changes on single-sex spaces and services have been a clear focus. I want to provide further reassurance on that—as I did in my statement. I have made it clear today and in my engagement with people that the bill does not make any changes at all to the current position on the Equality Act 2010 protections—all it does is simplify a process that has been in existence for 18 years for obtaining a gender recognition certificate.
It is important to say that trans people do not need to have legal gender recognition or a certificate in order to access facilities that align with their gender. Those are protections that trans people and everyone else have under the Equality Act 2010, and nothing in what we are proposing will change that act or current practices.
On what Ruth Maguire outlined could be said of the current process—which trans people have used for years, with no evidence of widespread harm—although we may refer to facilities such as toilets and changing rooms as single-sex spaces, they are not legally defined as such under the Equality Act 2010 and, of course, GRCs are not necessary to access them.
On the wider point about healthcare provision and single-sex services, which could include refuges and therapy groups, the Equality Act 2010 provisions will be unchanged. The act sets out the protected characteristics and provides for exceptions. As I mentioned earlier in response to Claire Baker’s question, there is a general occupational requirement exception, which can be applied in relation to health services when that is appropriate—for example, where intimate health and personal care services are provided.
Our public services have managed those issues for many years. I understand that the EHRC will revise guidance. Perhaps that will help public bodies with the practicalities of how they manage those issues. However, the reality is that they have managed them for many years.
I am happy to keep discussing the details of those matters with Ruth Maguire and others as we take the bill forward.
Women’s groups have felt sidelined during the consultation process, and they believe that the bill was a fait accompli before they had the opportunity to discuss it with the Scottish Government. What changes have been made to the bill following discussions with women’s groups, which took place as late as January 2022?
The bill is not a fait accompli. It has just been introduced in Parliament and it will be for Parliament—Conservatives and everybody else across the chamber—to scrutinise it, to look at the evidence, to hear all the different views about it and then to come to a conclusion about whether it should be supported. Our role as legislators is to scrutinise the evidence, which will be important.
I have spent a lot of time in meetings with people who are very supportive of the bill and with people who are vehemently opposed to it. I have tried to go through some of the issues and concerns that they have raised. I am not sure whether fears have been allayed, but it is fair to say that some of the fears and concerns are not directly related to the proposals in the bill; rather, there is general wider concern, which the bill will not change. There are issues that we could say relate to existing processes. However, fears are fears, and we have to do what we can to address concerns. I will continue to do that.
On the specific question about changes, I will mention one of the important changes that arose from listening to concerns. I was asked about how we will monitor the impact of the legislation. In response to that, we have introduced a new provision in the bill that requires annual reporting on the operation of the legislation. Ireland has done such reporting on the legislation there for seven years, including on things such as the number of GRCs that have been issued. That is a concrete example of what we have done, having listened to concerns. The bill was changed accordingly.
I have spoken directly with young trans people and older trans people who have been through the process of obtaining a gender recognition certificate. They have fed back the importance of being able to get a GRC and have said that the current system creates barriers to doing so. Does the cabinet secretary agree with me that the lived experience of trans people is what is important, and that simplifying the process will better support trans people to access their rights and to live the lives that they want to live?
Yes—I agree with that. Fundamentally, this is about supporting people who are already living in their acquired gender. It is clear from our consultations that many trans people, who already have a right to legal gender recognition, feel discouraged from applying under the current system, for all the reasons that we have talked about during the statement and questions. It is also clear that those who have gone through the process have found it to be lengthy, invasive and intrusive, having had their life circumstances and very personal details considered by a tribunal.
The bill seeks to remove those barriers to people accessing their human rights by removing the requirement for medical diagnosis and by reducing the period for which a trans person is currently required to evidence that they have lived in their acquired gender. It is important to say, however, that it will remain a serious and substantial process that will require applicants to make a statutory declaration that they intend to live the rest of their life in their acquired gender. In the case of a person making a false application, there will be a hefty fine—or, indeed, imprisonment in some circumstances.
I am glad that Karen Adam mentioned young people. I have heard directly from young people, who are very clear that they want to access these rights in an easier way, that there are too many barriers and that they want those rights when they become adults so that they can get on and live their lives as they want, in their acquired gender.
I welcome the introduction of the bill, and I associate myself with the comments of my colleague Pam Duncan-Glancy and with comments that members from across the chamber have made about the importance of respect in the debate.
I seek clarity on the proposed timescales. Delay has led to a vacuum, which is contributing to anxiety and, I think, to toxicity in public discourse. As legislators, it is now our duty to scrutinise the bill, so clarity on the anticipated timescale for each stage would be welcome. Is the cabinet secretary in a position to outline that for Parliament?
I hope that you could hear that clearly enough, cabinet secretary.
I think I got the gist of it.
Parliament sets the timetable for bills: the stage 1 debate, then stage 2 consideration and then stage 3. The role of the committee is crucial. Now that the bill has been introduced to Parliament, it is for Parliament to agree the timeframes in order to ensure that there is proper consultation and that Parliament can consider all the evidence. I hope that that reassures Paul O’Kane that we can get on with the job of getting the bill scrutinised and debated, now that it is in Parliament.
[Inaudible.]—clarify the ways in which the requirement for a diagnosis of gender dysphoria has become increasingly recognised as outdated and should no longer be considered as a mental disorder?
Cabinet secretary, would you like me to ask Ms Nicoll to repeat that?
No, I think I got it. It was about what I said in my statement about moving away from gender dysphoria being regarded as a mental disorder.
As I said in my statement, central to our view of a balanced and proportionate way of improving the system is removal of the requirement for a medical diagnosis of gender dysphoria, for all the reasons that I outlined in the statement and in response to questions so far. The bill sets out that the application process will be based on a statutory declaration that will be made by the applicant. I have set out why I think that so few members of the trans community have a GRC.
As I mentioned in my statement, the World Health Organization’s role in recategorising gender identity as related to health has been helpful. Trans identity was previously thought of as a mental health disorder, but the WHO took that step to reflect that it is not a mental ill health condition, and that classifying it as such can cause distress.
It is worth noting that the House of Commons Women and Equalities Committee, in its “Reform of the Gender Recognition Act” report, which was published in December, called for substantial changes, including demedicalisation of the process. There is recognition, not only in Scotland, that the process needs to be reformed; we can lead the way on that.
In the equality impact assessment for the bill, the question is asked:
“Do you think that the policy impacts on men and women in different ways?”
The Scottish Government’s answer is that it does not, but every single women’s group to which we have spoken says that it does. Does the cabinet secretary think that the Government has given proper consideration to the views of women’s groups?
The equality impact assessment has been an important part of the process, and a full equality impact assessment has been done.
I accept that there are some women’s groups, and some women, who oppose the policy, but there are also many women and women’s groups who support it—not least, women’s groups that provide support to some of our most vulnerable women. It is interesting to look at the BBC poll, which really does not reflect that argument. Support for reform of the gender recognition process was highest among young people and among women, and women were far more sympathetic than men to the need for a reformed process.
It is important that we recognise that women have a range of views on the policy, but it is not accurate to say that most women oppose it; the facts suggest otherwise. What is important, however, is that we take seriously the concerns that Pam Gosal and others have raised, that we do not ignore them or dismiss them and that we address them.
However, we have to point out that many of the issues are not related to what the bill is about, but represent a more general concern. Some of that might be about the feeling that we are not making the progress on women’s equality that we need to make. As a woman who has been campaigning for women’s equality for decades, as a feminist and as the mum of a daughter, I get frustrated about that. However, that is not the fault of the trans community. We have work to do to ensure that we can progress women’s equality. Let us keep talking about it, and let us try to reassure people where we can.
It is clear that some health issues are linked more to biological sex, which cannot be changed, than to gender. Will organisations that are involved in healthcare, such as the national health service and the Scottish Prison Service, be expected to keep records of both sex and gender?
People are able to change their gender under the current 2004 act. Interestingly, the existing gender recognition legislation talks about gender and sex. The bill makes no changes—none at all—to legal requirements, policy on data collection, record keeping or the criminal justice system. All public bodies must ensure that their policies and practices are in line with the Equality Act 2010, which sets out protections for the protected characteristics, including sex and gender reassignment, and exceptions for protection of single-sex services, among other things. The bill will not change any of that.
On prisons—this is an important point to make, because the issue has been raised with me and with others—obtaining a gender recognition certificate does not automatically provide access to specific accommodation.
The Scottish Prison Service already makes decisions about accommodating trans prisoners in a way that seeks to protect the wellbeing and rights of the individual as well as the welfare and rights of others. If the service’s risk assessment is that a person should not be placed in the women’s estate because they pose a risk, they will not be placed there. Similarly, if the service assesses that a person could be at risk themselves, they will not be placed where they could be at risk. That already happens. The Scottish Prison Service is reviewing its policy on transgender prisoners to ensure that it continues to get that right. That is what our public services should be doing.
That concludes the ministerial statement on the introduction of the Gender Recognition Reform (Scotland) Bill. There will be a brief pause before we move to the next ministerial statement.