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Chamber and committees

Plenary, 05 Feb 2004

Meeting date: Thursday, February 5, 2004


Gender Recognition Bill

The next item of business is consideration of motion S2M-813, in the name of Cathy Jamieson, on the Gender Recognition Bill, which is UK legislation.

Bill Aitken (Glasgow) (Con):

On a point of order, of which I have given notice, Presiding Officer. As you will be aware, an amendment in my name was lodged last night on behalf of the Conservative group. Its effect would have been for this Sewel motion to be dealt with in the established manner of dealing with Sewel motions, but the amendment was not accepted for debate. I seek your assurance that the amendment did not fail to be selected on the ground of competence.

Your amendment was absolutely in order. The decision was taken purely because of the lack of time in the debate.

The Deputy Minister for Justice (Hugh Henry):

I welcome Bill Aitken back to the fray. His presence has been sorely missed on several occasions, certainly in committee. I hope that he will put a bit of resolve and backbone into his troops now that he is back.

The issue that is before us is important. It flows from the United Kingdom Government's obligation to comply with the judgments of the European Court of Human Rights on the rights of transsexual people under the European convention of human rights. The purpose of the Gender Recognition Bill is to provide for the legal recognition of the acquired gender of transsexual people. The bill provides for the establishment of gender recognition panels with legal and medical members, who will make decisions on applications for gender recognition certificates from transgender people.

We believe that the inclusion of Scottish provisions in the UK bill offers the swiftest and most cost-effective means to remedy the human rights breaches and to deliver the comprehensive legal recognition that is required by the court's decisions. We also believe that a UK-wide approach will ensure consistency in the process of determining legal recognition and in the legal consequences that flow from recognition of a transsexual person's acquired gender, thereby avoiding difficult and complex cross-border issues.

The relevant Scottish provisions have been included in the bill to ensure that the legislation takes account of Scots law. We believe that that is the best and most consistent way to deal with the difficulties. It avoids the problems that could be caused in relation to reserved matters such as pensions and benefit rights and the problems that would arise if people in England and Wales had legal recognition and people in Scotland did not.

Will the member take an intervention?

Hugh Henry:

I am just about to finish.

The UK Government has introduced the bill because it must meet its legal obligations. The purpose of the Sewel motion is to enable us to do the same.

I move,

That the Parliament endorses the principle of giving transsexual people legal recognition of their acquired gender and agrees that the provisions in the Gender Recognition Bill that relate to devolved matters should be considered by the UK Parliament thereby ensuring a consistent UK approach and early compliance with the rulings of the European Court of Human Rights with respect to the Convention rights of transsexual people under Article 8 (right to respect for private life) and Article 12 (right to marry).

Nicola Sturgeon (Glasgow) (SNP):

I begin by saying that I strongly support the principles of the Gender Recognition Bill. I am aware that others take a different view, perhaps including some members of my party, although I am looking at no one in particular. I have no doubt that if we are to meet our obligations under the European convention on human rights, we must provide for the legal recognition of transsexual people in their acquired gender.

Notwithstanding that, my colleagues and I will vote against the Sewel motion for two reasons. First, the bill deals with many complex matters of law that are devolved to the Parliament. For example, the bill will create a new ground for divorce under Scots law, which is no small matter. The bill will also have significant implications for the law in Scotland that relates to sexual offences. For that reason, if for no other, the bill requires detailed scrutiny in the Parliament, where responsibility lies.

The second reason is that when an issue is controversial—whether or not I think that it should be controversial—we should have open debate and allow all strands of opinion to be heard. If we agree to the motion and pass legislative responsibility to Westminster, all opportunity for debate and scrutiny in this Parliament will be lost. A debate of 45 minutes in committee and of 20 or 25 minutes in the chamber on a bill that is as complex and important as the Gender Recognition Bill is not enough. The bill merits much greater scrutiny and debate.

The Executive will say—and Hugh Henry has said—that if we do not agree to the Sewel motion, Scotland's legislative position will be behind that of England. We must stop and reflect on why that would be the case. The reason is simple: the Executive decided not to timetable a Scottish gender recognition bill. The ECHR cases that made the Gender Recognition Bill necessary were decided in 2002, so it would have been perfectly possible for the Executive to timetable such a bill in its legislative programme for this year. We must be careful not to set in stone—as we are beginning to—the dangerous precedent that when the Executive deliberately fails to act, it can use that inaction as a justification for handing over our powers to London. We should not allow that to happen.

People do not send us here as MSPs and pay us handsomely for that privilege to hand huge chunks of legislative power back to London while we fritter the hours away on motherhood-and-apple-pie debates that change little in Scotland. They do not send us here to duck responsibility on devolved issues just because they might be morally difficult. Sooner or later, the Parliament and all its members will have to emerge from the shadows of the section 28 debate and have the courage to take the lead on difficult issues such as gender recognition.

I will vote against the Sewel motion. I call on ministers to introduce Scottish legislation, because the matter is substantially our responsibility. That would enable scrutiny and debate to take place where it should take place—in the democratically elected Scottish Parliament.

Patrick Harvie (Glasgow) (Green):

The Scottish Green Party is pleased to endorse the principles of the Gender Recognition Bill, which is a long-overdue measure to give a little respect to the human dignity of transsexual people. Members will have received a fair amount of correspondence on the issue, much of which is highly prejudiced and misinformed. I will deal with that right away.

The right of transsexual people to have their birth certificates amended to reflect their true gender will do away with the significant practical problems that many have faced over the years and with the symbolic insult with which they have lived. That right reflects the values of an inclusive, modern society that is at ease with its diversity.

What problems will be created for a child when they find that the father whose name appears on their birth certificate is now recorded as being a woman?

Patrick Harvie:

The loving contribution of a parent is valuable, whoever that parent is and whatever society judges that parent's gender to be. The quality of parenthood is far more important than what a birth certificate says.

It would appear that those who oppose in principle the rights of transsexual people have made much mischief, spreading misinformation about the bill. For example, no church will be obliged to offer marriage services to transsexual people; in fact, churches will retain the right to refuse such services for no reason other than the fact that a person is transsexual. The assertion that the bill has something to do with same-sex relationships confirms the fact that misunderstandings have arisen. Personally, I would prefer state-recognised institutions such as marriage to be open to all couples, but—sadly—that will not be the case. As for the more outrageous criticism that I have heard of the bill, I am sure that members will recognise the influence of certain right-wing lobby groups that the Parliament has had the wisdom to ignore in the past. I am sure that it will do so again.

Before I move on, let me express a little note of caution. I have no interest in getting involved in a constitutional bun fight, the like of which we saw yesterday, when my colleague Chris Ballance raised criticisms of the Sewel motion procedure. Nevertheless, criticisms have to be made. I believe that the Parliament can occasionally use Sewel motions legitimately, for valid reasons. I hope that we will not always use them, as I believe in independence, but in a devolved Parliament such as this, there is a place for the Sewel motion. However, the Sewel motion procedure that we have is wrong. It fails us and it fails those for whom we work. My reasons for saying that are exemplified by the treatment of the Gender Recognition Bill.

Campaigners naturally welcomed the bill's publication, and they welcomed the Sewel route as the fastest way in which to get results. However, their support was dependent on the expectation that MSPs would be kept in the loop, that the process would hear Scottish views and that the results would be right for Scotland. The Equality Network has said:

"Our support for the Sewel route was based on an understanding that the Scottish Parliament and its committees would be able to scrutinise properly the very significant devolved parts of the legislation. This has not happened."

You have one minute.

Patrick Harvie:

I am sorry. I was promised six minutes. I shall try to be quick.

Those people have been let down by the process. The motion comes to us two months after the bill's introduction at Westminster, with barely two weeks for the Parliament to consider it. The Equal Opportunities Committee, which conducted an inquiry into the issue, was not designated as the lead committee, so the people who gave evidence to that committee may be left wondering what worth their contribution to its inquiry had.

Will the member give way?

Patrick Harvie:

I am sorry, but I have to move on.

The lead committee—the Justice 1 Committee—had a single hour in which to scrutinise the bill and probe the minister. It would have been impossible to conduct full scrutiny and, unsurprisingly, some details have been missed in the committee's report, such as the right to transition at 16 rather than 18. The fact that Westminster has no intention of taking specific evidence on the Scottish aspects of the bill means that we can fear that such errors will be introduced into our law.

I urge all members to reconsider my motion S2M-665, on the use of Sewel motions, which I have circulated again today. I urge the Executive to consider the issues and to ensure that ministers are communicating with their Westminster colleagues. I urge the Procedures Committee to proceed with its review of the Sewel motion process, which must be reformed. If we fail to reform it, it is only a matter of time before we make serious mistakes. Whichever bills are affected, we risk creating sub-standard law and failing the people for whom we are working.

Marlyn Glen (North East Scotland) (Lab):

The Gender Recognition Bill is a measure that will impact directly on a very small number of people in Scotland, but it will bring a significant improvement to the lives of transgender men and women. The Sewel motion is designed to allow us to apply the rulings of the European Court of Human Rights, and that form of approach is welcomed by the transgender community, because it allows us to meet the requirements in a realistic timescale. As a member of both the Equal Opportunities Committee and the Justice 1 Committee, I welcome the debate.

I assure members that both committees considered the bill and that the evidence that was given to the Equal Opportunities Committee was fed into the Justice 1 Committee's consideration of the bill.

We have not just a legal obligation, but a moral obligation to recognise the acquired gender of transsexuals and, importantly, their right to a birth certificate that shows that acquired gender. Although speed could be seen to be of the essence, the measure covers a complex and technical area of the law. Consequently, the Justice 1 Committee felt that the use of the Sewel convention in relation to such legislation should be reviewed by the Procedures Committee, especially given the timescale, although that timescale helps us to meet the ECHR requirements more quickly—a move that has long been awaited by the transsexual community.

The bill will not change any fundamentals of Scots law. It will simply give a minority rights that most of us take for granted but at the same time guard very jealously.

Choosing to change one's whole lifestyle is not an easy option. [Interruption.] I presume that I will be given extra time to cover that interruption.

Gaining a gender recognition will not be an easy option either. Stringent conditions will have to be met before the proposed gender recognition panel will grant a certificate. For the sake of clarity, those conditions bear repetition. The conditions are that the person must have gender dysphoria, must have lived for two years in the acquired gender and must formally agree to live thus until death.

The concerns that remain about the practicality of the measure point to the importance of our direct input into the debate. It is essential that gender recognition panels should be accessible to Scottish applicants. In particular, the cost should not be prohibitive. That is especially important for young transsexuals. It is also important that the panel has Scottish legal representation.

We need to remember that, although the number of transsexuals in Scotland is quite small, they are a particularly vulnerable group who, unfortunately, can be deliberately targeted. That is why concern remains about sexual offences, which in Scotland are gender specific. Clause 19 of the bill will ensure that criminal liability exists regardless of gender change, but the Law Society of Scotland and others have pointed out that there is a lack of clarity. The Justice 1 Committee welcomes the minister's commitment that further consideration will be given to the issues that are involved.

There is no intention that the Sewel motion that is before us should be a route by which Scots law is changed substantially in this complex area. The law in Scotland must afford protection to us all. Many groups have called for a commitment to consider in the near future a major reform of the law on crimes of a sexual nature. I look forward to hearing of such a review.

I conclude by asking the minister to repeat his assurance—I hope that we will be able to hear him—that any significant amendments to the bill will be brought back to the Scottish Parliament for discussion.

Bill Aitken (Glasgow) (Con):

In opening, I thank Hugh Henry for his kind remarks. I also thank other members for their cards and best wishes in what has been a pretty unfortunate time.

On the substantive issue, I will be extremely careful in what I say, given the prevailing thunderous weather conditions, which have now silenced, perhaps in recognition of the fact that what I will say will be common sense.

Although Sewel motions have caused much excitement in the chamber on previous occasions, I had thought that the principle was well established. I need hardly remind members of the purpose of the device, which is simply to incorporate in law legislation that will be dealt with in much greater depth by Westminster. In the past, the vast majority of MSPs have been content to allow that to happen.

Of course, the system is enshrined in the Scotland Act 1998. Although SNP members are ever anxious to extend the terms of that act towards a greater degree of independence, until now most parliamentary groupings have seen the sense of the arrangement. Unfortunately, the Executive has seen fit to depart from that arrangement on this occasion.

Will the member give way?

Bill Aitken:

I do not have enough time, as I have only four minutes.

If the issue is being dealt with by Westminster, it should not be for the Executive to endorse the bill in the manner in which it does in the motion in the name of Cathy Jamieson. The amendment in my name, which I had hoped to have debated today, was perfectly straightforward. My amendment would have sought to remove the motion's endorsement of the bill and to have the matter dealt with in accordance with well-established procedures.

I make no comment on the desirability or otherwise of the bill. In our view, that is not the issue today. In any event, there is not sufficient time or opportunity to make a case for or against the bill. Clearly, only the most truncated and unsatisfactory arguments could be made.

Westminster will examine the matter in greater depth and will listen to the various arguments. Although members of both the Scottish Parliament and the Westminster Parliament are perfectly entitled to take a view on the bill, it occurs to me that one should do so only after having listened to the arguments and having heard the matter debated appropriately and comprehensively. That is why the Sewel principle exists. The arguments for and against the bill can be made at Westminster, utilising the full debating structure that exists there.

Members of the Conservative group in the chamber will vote on the substantive matter according to their individual opinion and the whip will not be applied. The Conservatives at Westminster have adopted a similar stance. However, I suggest to the Minister for Justice that if she wishes to receive support on this issue she should clarify certain provisions in the bill, especially the provision for a penalty in the event that a church minister should point out that a transsexual is, in fact, a man, which seems to be causing considerable unease in the correspondence that I have received.

This debate is very much about whether or not it is appropriate for the matter to be dealt with in the way that is proposed. We are firmly of the view that the way in which the Executive has dealt with the issue sets a most dangerous precedent that, in time, it will come to regret bitterly. Patrick Harvie was right to say that this type of legislation is controversial and can cause feelings to run high. The inescapable conclusion that any bystander would reach on the Executive's approach to dealing with the legislation is that it is a cop-out and that the Executive is seeking to avoid under any circumstances a repeat of the section 2A fiasco. It is seeking to have the legislation passed with the minimum amount of debate possible and to be seen not to endorse it too whole-heartedly. A very unfortunate precedent has been set that does not augur terribly well for the future.

Margaret Smith (Edinburgh West) (LD):

This is a sensitive and complex issue. I know that members from all parties have a range of different concerns about it. That is why we should have the time to debate it properly.

I hope that today MSPs will show compassion for the 500 transgender Scots and their families who are living with the consequences of gender dysphoria and that they will give the go ahead to this flawed but effective Sewel motion. That will enable the UK to move forward swiftly to legislate in this area and, in so doing, fulfil its obligations under the ECHR, having been found to be in breach of those by the European Court of Human Rights. All other European Union member states, with the exception of Ireland, already give legal recognition to gender change.

I echo many of the points that Nicola Sturgeon, Patrick Harvie and others have made. It cannot be right that a piece of controversial legislation that introduces a new ground for divorce in Scotland, raises concerns about our sexual offences legislation and confers legal rights at the age of 18—rather than 16—should be subject to so little parliamentary scrutiny. The Sewel route has its pragmatic advantages, but we must retain the right to spend the time that is necessary to investigate fully changes to Scots law. The Parliament has had only two weeks to examine the bill in committee and to debate it in the chamber—a total of one hour of parliamentary time. That may be the result of Westminster constraints, but the handling of our input in that way throws up serious questions about the continued use of the Sewel mechanism.

There are a number of concerns about the bill. The Justice 1 Committee had concerns about the potential cost to applicants, about the need for Scottish legal practitioners to serve on the relevant panel and about certain privacy issues. The Executive has said that it does not want to make special allowances for transsexual people that do not apply to other groups. That means that the 5 per cent of couples concerned who wish to remain together, against all the odds, will be forced to divorce by the state, rather than be allowed to remain in a same-sex marriage. The Government is content that civil partnership will represent an alternative legal union, but that is not in place. I seek assurances from the minister that if an existing marriage is replaced by a civil partnership the transition will be seamless and there will be no loss of rights relating to pensions, for example, arising from the length of the partnership.

The only ground for divorce in Scots law is irretrievable breakdown, so the bill would introduce a new ground for divorce. Many of my colleagues on the Justice 1 Committee are still unclear about what the rights of the other party to that divorce and the procedure for divorce would be. There is a need for greater clarity in that regard.

The other real area of concern goes further than the bill. I refer to the lack of clarity regarding sexual offences. I recognise that in committee the Deputy Minister for Justice agreed to examine that issue further. Transgender people must be protected fully when they are the victims of sexual assault—as they very often are—and must be prosecuted when they are the perpetrators. That protection must be in place before, during and after the acquisition of a new gender. English law already deals with that because it is gender-neutral. The Sexual Offences Act 2003 extended the law explicitly to surgically constructed genitalia. That is not the situation in Scotland. The Executive tells us that provision has been made in clause 19 to switch off a person's legally acquired gender if otherwise criminal liability would exist, and I understand that an amendment will be lodged at Westminster to that effect.

I hear what Bill Aitken says about passing the matter down to Westminster, but we have to ensure that the key differences between Scots and English law will be examined at Westminster, because we have not had enough time to consider them fully in this Parliament. However, I recognise that the minister gave me the assurance last week at the Justice 1 Committee that

"if any changes of significance for this Parliament are made to the bill, they will be brought back"—[Official Report, Justice 1 Committee, 28 January 2004; c 523]

to committee and to Parliament. I certainly welcome that assurance.

Despite my reservations, I encourage members throughout the chamber to support the measure and to deliver at last a certain amount of justice and peace of mind to one of the most vulnerable groups in the country.

Pauline McNeill (Glasgow Kelvin) (Lab):

There is no doubt that, as other members have said, we would have preferred a bit more time to examine this complex issue.

With reference to the SNP's challenge to us to have the courage to deal with the matter in Scotland and Bill Aitken's comment that the motion is a cop-out, I have to say that I think that it would be a cop-out not to support the motion tonight. If members have the courage of their convictions and believe that gender recognition is an important right, they should vote for the motion.

I welcome the European Court of Human Right's decision to make gender recognition a matter of human rights that should be enshrined in law. However, some of the technicalities in the bill need to be discussed further.

I want to amplify the point that Margaret Smith made about the fundamental change that could come about in Scottish family law, in which divorce is currently based on irretrievable breakdown where one party sues the other. There are three potential scenarios. One scenario is where a married couple jointly go to court and the court grants the divorce because it is sought before one party can acquire their new gender. However, life is not like that. A second scenario is where the non-transgender spouse cannot defend a divorce action—they can do nothing about it. I do not believe that the bill addresses that question. A third scenario is where the non-transgender party is unco-operative or wishes to sue the other party. I do not believe that it is acceptable that the ground of unreasonable behaviour will have to be used, as has happened in England and Wales. If the bill becomes law, it will not be logical for a divorce to be granted on the ground of unreasonable behaviour, such behaviour being that the other party chose to take up their human rights.

We have had assurances, with which I am quite happy, from the ministers that they are alive to the question. It is a complex issue and we do not want to change our law fundamentally by accident. It would be good to get on the record today that we are clear that the process will allow us to consider the matter further. I believe, as do others, that there is another way of bringing the marriage to an end in a way that is not so complex. I am asking for the chance to discuss another possibility that will achieve the same thing. However, I welcome the legislation.

Hugh Henry:

As members have indicated during the debate, this is a sensitive and complex issue. I will attempt, in the limited time that I have available, to answer one or two of the questions that members have asked.

I give Pauline McNeill an assurance that we certainly do not want to change Scots law fundamentally by accident. A number of protections have been built in, but I also give the assurance to Marlyn Glen and Margaret Smith that if anything significant happens during the course of the bill's progress at Westminster, we will bring the bill back. Pauline McNeill is right that we must ensure that we do not change anything by accident or by not considering the matter properly.

Pauline McNeill is also right about Nicola Sturgeon's comments and about any other member who claims to support the change but who votes against the Sewel motion. That would be a cop-out because such a vote would leave people significantly disadvantaged.

Will the minister give way?

Hugh Henry:

No. I have limited time.

I can understand members who are fundamentally opposed to the principles of the bill voting against the Sewel motion, but not those who say that they want to see the change. Nicola Sturgeon asks why we do not introduce an Executive bill. We set out a very clear legislative programme at the start of the parliamentary session and any changes to that programme to accommodate a full bill would mean that something that we had previously indicated was a priority would have to be dropped. Difficult choices have to be made. In the circumstances, the opportunity to legislate through the Sewel motion enables us to address the issue, to address our legal obligations and to maintain an important legislative programme for this session.

In passing, I want to mention Patrick Harvie's request that the age limit for applying for a gender recognition certificate be reduced to 16. Given that people will have to live in their acquired gender for two years before they can apply for a certificate under the bill, Patrick Harvie and the Green party are saying that they want 14-year-olds to make the decision to change their gender.

Hugh Henry:

I think that that would be a very unfortunate step, which would not be appropriate for someone of that age and would have all sorts of legal implications.

Finally, I address the point that Patrick Harvie and, I think, Bill Aitken, made about church ministers. Patrick Harvie is absolutely right to say that there has been a campaign of disinformation. Some people might be trying to mislead deliberately and some might be doing so inadvertently. There is no requirement on a minister of religion to perform a church ceremony if they do not want to do so and no penalties will be imposed on them.

The issue of the £5,000 fine has also been raised. That fine relates purely to anyone in a position of authority who divulges information that they were given as a result of their being in that position. Someone who acquires and passes on information in a casual way would not be liable to any fine. I think that it does a disservice to ministers of religion to suggest that any of them would divulge information that they had been given in a privileged and protected way. To pass on such information would be an abuse of their vocation and their integrity and I cannot imagine a minister of religion doing anything of that nature. I do not think that the question of the fine applies in such situations because I cannot imagine that someone in a position of authority, such as a minister, would pass on information.

The issues are being addressed. Scottish representatives—who represent Scottish interests every bit as much as we do—will have the opportunity to debate the matter at Westminster. I think that the Sewel procedure is the best mechanism to use to bring the matter forward speedily and draw it to a conclusion.