Meeting of the Parliament (Hybrid)
Meeting date: Thursday, October 27, 2022
Agenda: General Question Time, First Minister’s Question Time, Royal National Mòd 2022 (Perth), Portfolio Question Time, Scottish Covid-19 Inquiry Chair, Gender Recognition Reform (Scotland) Bill: Stage 1, Decision Time, Corrections
- General Question Time
- First Minister’s Question Time
- Royal National Mòd 2022 (Perth)
- Portfolio Question Time
- Scottish Covid-19 Inquiry Chair
- Gender Recognition Reform (Scotland) Bill: Stage 1
- Decision Time
Gender Recognition Reform (Scotland) Bill: Stage 1
The next item of business is a debate on motion S6M-06459, in the name of Shona Robison, on the Gender Recognition Reform (Scotland) Bill at stage 1.14:56
The Gender Recognition Reform (Scotland) Bill reforms the process that has been in place for the past 18 years for trans men and women to obtain a gender recognition certificate, or GRC. We know from extensive consultation, as well as from evidence heard by the Equalities, Human Rights and Civil Justice Committee, that many trans people find the current system overly medicalised, complex, intrusive and invasive. Its barriers prevent many trans people from applying for a GRC. The bill will make the process simpler, more streamlined and more respectful of the privacy and dignity of trans men and women.
I am grateful to the committee for its majority support for the general principles of the bill, and I thank committee members for their extensive work in scrutinising the bill. I also thank the many organisations and individuals who have participated by providing evidence since the bill was introduced.
I acknowledge that people across the chamber and among the wider public have differing and genuinely held opinions on the matter of gender recognition reform. When I introduced the bill, I committed to listening to the views of everyone in a respectful manner. I have done and continue to do that, and I am confident that this afternoon’s debate will be open, considered and respectful, consistent with the approach taken by the committee. As a Parliament, we have a responsibility to protect and support minority groups. One way in which we can do that is by leading by example with the tone of our discussions. To date, the committee and the Parliament have always ensured that the tone is respectful.
However, we know that that is not always the case outside the Parliament, particularly on social media. Abuse directed at anyone on this matter, whatever their opinion, is wrong. It is important to recognise the discrimination, harassment and abuse faced by trans people in Scotland simply for living their lives, which is wrong, too. Statistics from Police Scotland show that the incidence of hate crimes against people for being transgender has increased. Evidence suggests that the tone of discourse surrounding legal gender recognition has contributed to that. No matter what our point of view, we can all call that out where we see it and remain respectful to each other’s opinions.
I endorse everything that the cabinet secretary has just said about the tone of the debate.
There is real concern about the impact of what is being proposed. Is it the Scottish Government’s position that the issuing of a gender recognition certificate changes someone’s sex in relation to the Equality Act 2010? If so, that will open to biological males a whole range of spaces and services that are currently reserved to women and girls, and that change will be made without the need for any medical intervention.
There is no change to the protections under the Equality Act 2010. I will now come on to the issue of the impact on women and girls, which some people are concerned about.
I know that, where people have concerns about the reforms, they generally centre on the potential impact on women and girls with regard to their ability to safely and confidently access single-sex services and spaces, to be accommodated safely in prisons and to participate fairly in sport. I am sympathetic to those concerns because I know from my own experience, and from years of working to improve women’s rights, that women and girls still face inequality and an increased risk of harm in Scotland today.
This Government continues our work to address that, including through the equally safe strategy and work to address misogynistic behaviour. We know from all the evidence that the threat to women comes from predatory and abusive men, not trans women or trans men.
The cabinet secretary will recognise my passion to ensure that everyone has equal access to sport. Does she recognise that, when males and females go through puberty, significant changes happen with regard to menstruation, the Q angle at the hip and the ability to apply force, and that males gain a third more muscle mass and a third more bone density than females, as well as increased heart and lung capacity? The fact is that a man can apply 160 per cent of the force that a similar sized woman can. Does the cabinet secretary recognise the danger that that poses to women in sports where power and speed are important? Will she agree that having an open category alongside male and female categories would allow fair and equal participation for all?
I want to make it clear that the bill changes none of that. It is for sports governing bodies to establish what is right for their sports. The member will be aware of sports governing bodies doing that.
Helping one group to better access their rights does not mean diluting or diminishing the rights of another group. We have set out why the bill will not change the provision of single-sex services or the arrangements with regard to prisons or sport, because none of those is dependent on possession of a GRC. That view is supported by the Scottish Human Rights Commission, Amnesty International and other human rights organisations. I am glad that the majority of members of the committee have also concluded that there is no evidence to suggest that the rights of women and girls are impacted negatively by the bill.
We all want to live in a society that includes and supports everyone to live in a way that is true to themselves, and that allows them to be accepted for who they are. Improving trans people’s access to their existing legal rights is an important part of making that a practical reality.
The Scottish Government has consulted widely on this issue, in two of the largest public consultation exercises that we have ever undertaken. I am grateful to the committee for continuing in that vein. A huge body of evidence has been gathered throughout the passage of the bill so far and a significant amount of work has gone into the production of the stage 1 report.
I am pleased that, following the extensive evidence sessions, the majority of members of the committee support the general principles of the bill. I recognise that a minority view was expressed, but it is also clear that there is strong cross-party agreement that reform is needed.
It is encouraging that, although the committee has requested more information and explanation in some areas, there are no specific recommended changes to the provisions of the bill as introduced.
I also welcome the majority view of the committee that the age of eligibility for applicants should be 16. The committee heard that young trans people currently feel excluded from the system, particularly given that they are at an age at which they want consistent documentation before entering higher or further education or starting their first job. I agree that it will be important to ensure appropriate support and signposting to resources for all applicants, and particularly those aged 16 and 17. In line with the recommendation that was made by the Children and Young People’s Commissioner Scotland, young people will be involved in development of the process and guidance.
The cabinet secretary knows that I support the bill in principle, but I have some concerns about people in the 16 to 18 age range, notwithstanding the issue of guidance, which I know has been discussed. I am also concerned about people in that age range being required to have lived in their acquired gender for only three months. Accordingly, I am on the cusp of considering amendments, but I would rather discuss the issues with the cabinet secretary first. I give her an assurance that I support the bill at stage 1, but will she meet me to discuss those issues?
I am happy to give that commitment.
The majority of the committee support a reduction in the period of time that applicants must have lived in the acquired gender. In my view, three months living in the acquired gender, followed by a three-month reflection period, represents a balanced and proportionate reduction in the overall length of the process, while ensuring that applicants have a further opportunity to consider their decision before proceeding.
I have, however, taken into account evidence given to the committee that the reflection period could be a disproportionate barrier where an applicant is terminally ill. I also appreciate that an important benefit of a person’s having a GRC is that it will ensure that their death registration reflects the gender in which they lived. I therefore intend to introduce an amendment to the bill for a dispensation from the three-month reflection period where an applicant is terminally ill.
Will the cabinet secretary take an intervention?
I am short of time, but I will address matters in my closing remarks if Ms Hamilton wishes to put them on the record later.
The committee sought further clarity on the meaning of the phrase “ordinarily resident” in the bill, which we have provided in our response. Being “ordinarily resident” is an established concept in several areas of law, including pensions and benefits, taxation and jurisdiction, and including in at least 17 acts of the Scottish Parliament. In general, it means that someone’s residence here is voluntary, for settled purposes and lawful.
The committee noted the concerns raised by several witnesses that the provision allowing a person who has an interest in a GRC to apply to the sheriff to revoke such a certificate might allow legitimate applications to be frustrated. Although I understand such concerns, under the bill a person seeking to revoke a certificate has to have a genuine interest in the GRC. It would have to affect them materially, and personally or professionally, and they would have to prove the ground on which the certificate could be revoked. References to a “person who has an interest” are also common in acts of this Parliament.
The committee rightly highlights the importance to trans people that a GRC issued in Scotland should be recognised in the rest of the United Kingdom. Trans people will continue to be protected from gender reassignment discrimination under the Equality Act 2010 throughout the UK, whether or not they have a GRC.
It will be for other jurisdictions to set their policy on whether they recognise legal gender recognition obtained elsewhere. Under the current system, some people who have obtained legal gender recognition outwith the UK, including under systems based on self-determination similar to that proposed in the bill, can apply in the UK without needing to provide any medical evidence.
It is, of course, not uncommon for Scottish legislation to have implications for the rest of the UK. A section 104 order under the Scotland Act 1998 provides the mechanism for the UK and Scottish Governments to work together to make consequential modifications. The Scottish, UK and Northern Irish Governments are working together at official level, and I have written to the UK equalities minister reaffirming our commitment to work constructively together on the matter.
There is majority support from the committee for the bill as introduced. Four of the five parties in the chamber advocated for gender recognition reform in their manifestos. The Scottish Government has responded to the committee’s requests for further clarity in its written response. The bill has been subject to extensive scrutiny, both by the public through consultation and by a range of experts and stakeholders during the committee’s evidence sessions.
It is clear from the stage 1 report that the committee’s majority view is that the proposed reforms will support trans men and women to obtain legal gender recognition in a manner that is significantly less demeaning than the current medicalised system.
I look forward to hearing members’ views and I welcome the opportunity to engage with them again on the bill. I again thank the committee for its work during stage 1 and in the weeks to come.
That the Parliament agrees to the general principles of the Gender Recognition Reform (Scotland) Bill.
I take this opportunity to advise members that there is some time in hand for interventions.
I call Joe FitzPatrick to speak on behalf of the Equalities, Human Rights and Civil Justice Committee.15:08
I am grateful for the opportunity to speak in the debate as convener of the Equalities, Human Rights and Civil Justice Committee.
I thank everyone who provided evidence—both written and oral—to the committee, all of which informed our consideration of the bill. I also record our thanks to the committee’s clerks, the Scottish Parliament information centre researchers and everyone else who has supported our work on the bill thus far.
I preface my remarks by highlighting that although the committee reached agreement on many issues, we were not unanimous on all of them. Those divergences are reflected in our report. My speaking time in the debate is limited, so my remarks as convener will focus on the majority view of the committee on key aspects of the bill. I am sure that members who represent the minority view will set out their thoughts in their contributions.
By a majority of five members to two, the committee supports the general principles of the bill.
Will the member take an intervention?
I thank the member, but there is so much work in the committee’s report that I want to ensure that I take the time to go through it, so unfortunately I will not be able to take interventions.
The committee supports the removal of the gender recognition panel and its replacement with a model that is based on self-declaration. That will introduce a more humane and less intrusive process, which will bring Scotland into line with international best practice and human rights standards.
The committee also supports the removal of the requirement for a diagnosis of gender dysphoria and medical evidence. We heard evidence that medical gatekeeping is neither necessary nor appropriate. The legal status of a statutory declaration, the gravity with which such declarations are made, and the fact that making a false statutory declaration is an offence, together create a robust process for accessing a GRC in line with international human rights best practice.
The committee supports the proposed reduction from two—
Will the member take an intervention on that point?
As I have said, I am speaking as the convener of the committee and am trying to get through an in-depth report. The committee covered a lot of issues and ground. If there is time before the end of my speech, I might be able to take an intervention, but I reiterate that I am speaking as the convener of the committee. It is really important that we cover the huge amount of work that the committee did. If anyone wants to do so, they should take the time to look at our report.
On a point of order, Presiding Officer. It is very important that members have the opportunity to intervene on the convener of the committee. There are matters of concern that should be raised in a calm and sensible way to reflect the concerns that have been raised with us, as members of the Scottish Parliament, in respect of the work of the committee.
Thank you for that point of order. As members will be aware, it is entirely a matter for the member who is speaking whether they accept an intervention.
The committee supports the proposed reduction from two years to three months of the period for which an applicant must have lived in their acquired gender before applying for a GRC. However, we queried the reasoning behind the specific choice of three months, so I note the cabinet secretary’s response, which was that it represents the Government’s
“view of a balanced and proportionate”
way of improving the current system.
We also asked the Scottish Government to consider whether the three-month reflection period is appropriate, so I welcome the Scottish Government’s response—in particular, its proposed amendment in relation to people who are terminally ill.
The committee supports lowering the age of eligibility from 18 to 16. That accords with existing rights under the Age of Legal Capacity (Scotland) Act 1991. We heard that most young people reach decisions about their gender identity long before they consider applying for a GRC, so I welcome the Government’s commitment to work with the Children and Young People’s Commissioner Scotland and young people’s organisations to ensure that guidance is in place on the effects of obtaining a GRC, as well as signposting to specialist support.
On the requirement that applicants must be “ordinarily resident” in Scotland, the committee sought clarity on several eligibility issues. I note the response from the Scottish Government highlighting challenges around devolved competency and confirming that the cabinet secretary has raised the issues with the UK Government.
On the issue of GRCs that are issued in Scotland being recognised in the rest of the UK, which we heard is important to trans people, I note that the information that is set out in the Scottish Government’s response to the committee confirms that applicants from more than 40 countries—including countries that have introduced similar reforms to those that are proposed for Scotland, such as Belgium, Denmark, Norway and Iceland—can apply via a streamlined UK route.
On the bill’s provisions that a person with interest might apply to revoke a GRC on various grounds, our report calls for any vexatious complaints to be “dealt with robustly”. The Scottish Government has helpfully provided additional information by setting out the wider legislative context of the drafting of the provision and by providing examples of persons who might be considered to have an interest.
Our report noted concern about avoiding criminalising people who enter the application process for a GRC in good faith, but then change their mind. The committee has since received assurances from the Scottish Government around the process for withdrawal of an application and the process through which a person who has obtained legal gender recognition can legally change their gender again—or “detransition”.
Concerns were raised with the committee about perceived impacts of the bill on women and girls, minority ethnic groups and religious beliefs. Although we recognise that such views are sincerely held, the committee believes that the concerns that have been raised go beyond the scope of the bill. We are satisfied that the bill itself will not change any of the protections or definitions that are set out in the Equality Act 2010.
On concerns about whether the bill might impact on decisions relating to where to house transgender people in Scotland’s prisons, the committee believes that the issue is outwith the scope of the bill.
Will the member take an intervention?
Notwithstanding that, we were satisfied that the possession of a GRC does not affect the Scottish Prison Service’s risk assessment process, whereby an individual is placed in the most appropriate estate, whether for their own safety or the safety of others, regardless of whether they have a GRC.
Trans people’s participation in sport was also raised in evidence. The committee notes that this issue is much wider than, and largely unconnected with, the specific provisions in the bill. The committee agrees with the view of sportscotland—[Interruption.]—that GRCs have no impact on participation in sport, in accordance with the exemptions that are provided in section 195 of the Equality Act 2010.
Although the committee noted the complexities that were outlined by the Scottish Government on the extension of the bill to non-binary people, the committee was disappointed that the issue cannot be dealt with in the bill. We heard in evidence from young trans and non-binary people that the matter is especially important to them, so I welcome the Scottish Government’s commitment to develop, by spring 2023, an action plan that will be based on the outcomes from the working group on non-binary equality, and will set out how it intends to improve equality and bring about real, positive and lasting changes to the lives of non-binary people.
In closing, on behalf of the committee I thank everyone who engaged with our stage 1 scrutiny of the bill. [Interruption.] I want to thank in particular the trans people and parents who shared their experiences of the current system. It was really helpful for us to hear their personal stories, and I recognise that sharing them took courage. I would also like to thank everyone who has supported our work thus far—especially the committee clerks and Scottish Parliament information centre researchers.
By a majority of five to two, the committee recommends that the general principles of the bill be approved.15:16
Considering that some members will not take interventions, I would like to ask a couple of questions.
First, I would like to know from the cabinet secretary, in her closing remarks, whether she actually believes that a GRC changes a person’s sex for the purposes of the Equality Act 2010, as she did not answer that question when my colleague Murdo Fraser asked it. There are other interventions that I hope we will get in to members later, but I am already eating into my speech. I think that this needs to be a really open debate, and we need to get this crucial legislation absolutely right.
The current system for obtaining a GRC has, of course, been distressing for many. I hope that we will all agree today that we can improve the rights of trans people—but we also need to protect vulnerable young girls and the hard-won rights of women and girls. It is in that spirit that I want to outline the deeply held concerns of myself, my colleagues on the Scottish Conservative benches and, according to recent polling, a clear majority of the Scottish public who oppose the removal of key safeguards.
Sadly, so far, I believe that those legitimate concerns have been ignored by the Government. Even our voices, I believe, are being ignored today. The cabinet secretary was generous with her interventions, but I believe that the convener should have taken some interventions. As we move through the debate, I think that we should be honest and transparent.
Will the member take an intervention?
I have not even got into the substance of my speech. I will take an intervention if there is something specific that the member would like to ask me about.
As we have heard, the bill received one of the highest volumes of written evidence in the history of the Scottish Parliament. There were 11,000 submissions. Unfortunately, many of those contributions were overlooked in the report. I take the opportunity to thank everyone who contributed submissions. I regret to say that the timetable that the committee had set to consider evidence meant that only a small proportion of contributions could be considered. It is important that the voices that have been ignored in this debate can be heard and that legitimate concerns about the bill can be discussed.
A GRC is not just a piece of paper. Mr Justice Scoffield of the High Court in Northern Ireland described it as conferring
“a significant and formal change in”
“status with potentially far-reaching consequences for them and for others, including the State”.
The implications of the bill go beyond simply helping trans individuals gain recognition of their acquired gender.
One of the overlooked implications is the significance of the bill’s effect on the Equality Act 2010. The Scottish Government and several members of the committee claim that the 2010 act does not fall within the scope of the bill, yet in less than two weeks’ time, Scottish Government lawyers will be in court arguing that a GRC would change an individual’s sex under the Equality Act for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.
The Equality and Human Rights Commission has also shared concerns about the consequences of the bill and the Equality Act 2010, noting that
“extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point”
will have clear implications for the operation of the act. The bill as drafted is inextricably linked to the Equality Act 2010, as I am trying to explain—
Will the member take a brief intervention on that point?
I will in a second.
Let us just drop the pretence and have a grown-up conversation about what it means to issue more GRCs to a wider group and about the obvious implications for women’s sex-based rights.
I appreciate Rachael Hamilton giving way. Did the committee receive a definition of what it means to live in an acquired gender?
That is a great question, because the definition was already in the Gender Recognition Act 2004 and the bill is just rolling it over into this legislation, as the Scottish National Party would like to see it reformed. I hope that that answers the member’s question. Maybe not as such, but there was lots of debate around acquired gender and what it meant. Does it mean that someone is dressing in a certain way, acting in a certain way, speaking in a certain way? A lot more discussion around the issue could be had and it could be debated.
When organisations such as MurrayBlackburnMackenzie—MBM—and For Women Scotland talk about protecting single-sex spaces and the rights of women in Scotland, they do so because they know that the bill and its consequences, as outlined by the EHRC, erode the legal protection of single-sex spaces. We cannot allow those arguments to be ignored until the legislation has undermined measures that protect women’s dignity, privacy and safety and that promote their equality.
A bad-faith actor would currently find it very difficult to obtain a GRC, but with the proposed reforms a non-falsifiable declaration is all that would stand between them and receiving a GRC. That means that they could insist on using or getting access to female-only changing rooms, rape shelters, healthcare services and women’s prisons.
We are being asked to vote on an all-or-nothing choice between the system of safeguards that is currently in place and self-declaration—on a false dichotomy of elaborate oversight or no oversight. Legislators in 2004 did not decide upon the safeguards that are in place today by accident. I appreciate that some of the hurdles that trans people must overcome to obtain a GRC are tied up in those safeguards, but there is room to make the process easier without tearing it to pieces. There is certainly room to work on reducing the time that trans people have to wait throughout the process and room for medical support from our national health service.
It is a hard task for our legislators to ensure that safeguards exist so that the system is not taken advantage of and I hope that members can join me and achieve that aim, rather than just accepting that we can reform the legislation without doing so.
Concerns were also raised, and ignored, about lowering the age at which somebody can obtain a GRC to 16. Indeed, some of the evidence used to support those concerns came from the interim Cass review, which was similarly brushed aside by the majority of the committee. That landmark review notes—
I do not think it is fair to say that the Cass review was brushed aside. I and others specifically highlighted that there were areas that the Cass review was looking into that organisations in Scotland could learn from. We did not say that it should be brushed aside. I do not think that that represents the committee’s conversation.
Perhaps it is being a bit brutal on the views of the committee. However, two of us—my colleague Pam Gosal and I—think that the legislation should be paused until the Cass review is published in full, because that landmark review notes that a young person’s gender identity may remain in flux until their mid-20s. That point was backed up by written and oral evidence in the committee.
Without addressing that evidence, which was dismissed out of hand, with the cabinet secretary failing to acknowledge any opposition to her view on that point, this part of the bill has left so many unanswered questions and I believe that the opportunity represented by the Cass review to gain clarity has been spurned. That was deeply irresponsible of the committee members who chose to do that.
As Dr Cass made clear, social transition is not a neutral undertaking. Is Parliament really going to pretend that changing a teenager’s legal status from one sex to another is?
There is so much more to cover in this debate, but in my remaining time I want to highlight some other unanswered questions. The committee’s work exposed many of those, and answered few. I have talked about the effect of the bill on the Equality Act 2010. Perhaps the courts will give us some clarity next month, but I have not even begun to discuss the cross-border anomalies that have been highlighted by the Equality and Human Rights Commission, the extension of overseas recognition that is associated with the bill or the impact on marriage and civil partnerships.
With regret, I believe that the bill is a mess. It is trying to help, but the unintended consequences for women and girls, vulnerable young people and the trans people are deeply alarming, and the divisive nature of the issue has been handled poorly.
Presiding Officer, I know that you are looking at me and indicating that I should close. I have so much to say, but I will conclude. It is crucial that we get the bill right. The SNP Government needs to start listening to the legitimate concerns of women and the Scottish public. So far, there is little evidence that it has done so.15:26
Trans rights are human rights. They are inalienable, indivisible and interdependent. Human rights are our rights not because we are women, or trans, or gay, or disabled, or black, but because we are human, and society and Parliaments have a legal obligation to uphold them.
For trans people, being recognised in law for who they are is fundamental to that. In committee and throughout my equality and human rights campaigning life, I have heard—and I am in no doubt—that the process to be recognised in that way is dehumanising, intrusive, offensive, expensive and lengthy and that it needs to change. I and Scottish Labour will therefore vote for the bill at stage 1 today. We have always been at the forefront of equality and human rights and we will always defend and protect them.
Taking unnecessary and unhelpful medical requirements out of the process and replacing them with something that is dignified, more accessible and administrative in nature and that will deliver a process in which both trans people and the wider public can have confidence is not just long overdue and compliant with international best practice, but essential for a society that believes in equality and human rights, and it is the right thing to do.
Does the member believe and agree with her party’s former leader Johann Lamont, who said that MSPs must
“consider any unintended consequences of gender reform”
on women and girls?
We believe that the data that will be collected as a result of the bill needs to be strengthened so that we can properly evaluate the legislation once it has come into force. That is why we believe that amendments need to be lodged on data collection, scrutiny and post-legislative evaluation.
As the bill proceeds, Scottish Labour will seek to ensure that the new arrangements for applications for and administration of GRCs will reflect that. We believe that, to ensure that that happens, the bill needs to be improved in a number of areas. They include the process that the registrar general for Scotland will put in place for people to apply for a GRC, the provisions around age, signposting to support people, and information on the data that will be collected about GRCs—I hope that that addresses the member’s point. There is a duty on all of us as legislators and we stand ready to scrutinise the bill to ensure that it does all of that.
Before I turn to the detail, I want to say a word about the conversation so far. It is my view that delays to the bill have allowed a vacuum to develop and allowed people to interpret the bill as something that it is not and reach wrong or unproven conclusions about what its impacts may be. That has made conversations around it very difficult and, at times, hurtful and damaging.
I know that there are people, including some women, who have concerns about the impact of the bill, specifically on the protection of single-sex services. As a disabled woman, I know that all rights are hard fought and hard won, and so I understand the strength of feeling and why people need strong assurance that their rights will be protected.
It is essential that everyone’s rights are protected. From all the evidence that I have heard, which is a lot, it is clear to me that women’s and trans rights can, must and do already exist without one causing detriment to the other. That is the case mostly because people respect one another but also because the protections in the Equality Act 2010 make it so. Labour introduced the 2010 act, which rightly protects both women and trans people from discrimination. That is why we support reform of the Gender Recognition Act 2004 and the continued implementation of protections and provisions of the 2010 act.
Scottish Labour believes that, as the bill progresses, it should be clear that nothing in it affects the protections of the Equality Act 2010. We will lodge an amendment at stage 2 to do that and, following the positive conversations that I have had with the cabinet secretary, I would be grateful if, in closing, she would indicate the Government’s support for that.
Will Pam Duncan-Glancy take an intervention?
Presiding Officer, may I have time back if I take an intervention?
There is a little time.
Thank you. I will take the intervention.
Does Pam Duncan-Glancy believe that a GRC changes someone’s sex for the purposes of the Equality Act—yes or no?
I believe that a GRC changes someone’s sex for all legal purposes, including the Equality Act. I also believe that the Equality Act is a piece of legislation that gets the interaction between sex and gender perfectly correct. It is an act that can flex to context and situation, and it is in place to protect all people’s rights, which can exist alongside one another.
I and my party are committed to reform, but we all need organisations to be empowered to do the right thing and everyone to be able to enjoy their rights equally and in peace. That needs leadership and clarity. The bill would help to bring that, and I ask the Government to work with us on that and on other areas of the bill that we believe must be strengthened.
As it stands, the bill sets out who can apply for a GRC but not how. There is little detail on what the application to the registrar general will look like, the information that the registrar general will require or what information will be given to applicants who apply. The use of the term “acquired gender” in section 4 is unclear and does not recognise that steps prior to seeking legal recognition will have been long and well thought out. The same is true of the reflection period that would be introduced by section 3, and I know that many trans people find that deeply offensive.
Beyond the terminology, that area of the process and the length of periods are considered by many people to be arbitrary. Clarity on the rationale for that from the Government would be welcome.
We note that the Government has said that the National Records of Scotland should draft guidance on the process, but we would like to see more detail, as we believe that that would be crucial. We would also like clarity on the regulatory powers that would be introduced by section 11 that would allow the registrar general to request additional evidence. Specifically on that point, we seek reassurance that medicalisation cannot be reintroduced to the process.
We have concerns about the limitations of the term “ordinarily resident” in section 2, which could exclude refugees and asylum seekers from the process. That would not be fair. We note the comments on that in the Government’s response to the committee report, and we would like the opportunity to discuss that and consider it further.
Too often, trans people wait years for services or support. The information that they need is rarely available and they can be left isolated. Although we note that the Government has referred to guidance in its response to the committee report, we believe that it should take the opportunity to include in the bill clear obligations for signposting to support and information for all applicants.
There are also concerns around the low level of data collection under section 15, as I have touched on. Knowing the impacts of the bill—positive, negative and neutral—will be essential. As it stands, the data collection and reporting mechanisms that are outlined are not comprehensive enough to allow for proper evaluation of the impacts of the bill, and they should be strengthened.
Trans people have already been waiting for far too long for these changes. They deserve nothing less than good legislation that allows them to be recognised for who they are and in which everyone can have confidence. Scottish Labour is determined to ensure that we get that, to scrutinise the bill and to ensure that it meets its objectives and delivers the change that trans people need and deserve.15:33
It gives me great pleasure to rise for my party in support of this important bill. I am glad that we are finally here; it has been a long and painful road, not least for those who, right now, are being harmed by the Gender Recognition Act 2004. I offer my thanks to those Government ministers—Shona Robison, Shirley-Anne Somerville before her and the First Minister—who got us to this point. It has been a long time coming.
Support for the reforms was included in four party manifestos for the 2021 election and in all party manifestos for the election before that. The passage of time since then has allowed those reforms to become the subject of myth and hyperbole in our communities, which is deeply regrettable. It is now incumbent on all of us to debate the issues with compassion and sensitivity, and to remember that what is proposed in the bill is simply a technical amendment to law.
It is always right and vitally important to hear the widest possible range of views when it comes to changing legislation. As a liberal, I believe in the right of everyone to speak their mind and express their opinions. We should not censor people; instead, we should seek to meet their arguments or concerns with reason and with evidence. However, I make it clear from the outset that we cannot allow this debate to be hijacked by those who would question the very existence of the trans community, or who fear and vilify its members and would seek to prevent their access to equal rights.
I turn to the bill itself. Liberal Democrats passionately believe in the right of everyone to express the fullness of who they are, freely and unencumbered by unnecessary scrutiny, interference or abuse. It is not right that trans people are forced to seek permission to be who they are, but the original legislation currently asks that of them. Given the many challenges that they face in almost every aspect of their lives, we should seek to make recognition of their identity on the documents that they are required to hold the very least of their concerns. We certainly have the power to do that.
We cannot allow the original act to stand unamended. We have all heard the many troubling accounts of the damage that the current process causes, and of the unnecessary anxiety and pain that it exacts on the people who go through it. That is why Liberal Democrats have long been persuaded of the case for reform.
Let us unpack the reform that we are talking about and what it will mean. The current process to obtain a gender recognition certificate is dehumanising, and it is financially and emotionally costly for trans people. It involves submitting evidence of having lived continuously in their proposed gender for a minimum of two years and then having to wait anxiously while their identity is debated by five strangers who they will never meet. If the decision goes against them, they have no right of appeal. The bill is solely about making that process quicker and more humane. It is about respecting the humanity of trans people.
I would like to address the subject of women’s safety as it pertains to the bill. It is absolutely vital to state, for the avoidance of all doubt, that no part of the bill will make it easier for a man to access a women’s space. A gender recognition certificate allows for a trans person’s birth certificate to be changed. I can think of no venue or establishment that requires the presentation of a GRC or a birth certificate to validate entry. Indeed, neither certificate can be used to prove identification, and no permit or ID is currently required of anyone to enter any gender-specific space. The bill changes nothing in that regard.
I cannot disagree with anything that the member has said. I put on record the fact that I and all members of my party are looking for equality here.
I want to follow up on the question that I put to the cabinet secretary earlier in the debate. It really worries me, because sport is already struggling to deal with transgender women and the sporting authorities are all over the place on the issue. We need to ensure that we create legislation that protects everybody, and it is really important that we protect women’s sport in the bill. Let us take as an example Caitlyn Jenner, the celebrated trans woman who has brought trans women’s rights to the fore. He was Bruce Jenner when he won the men’s decathlon at the Olympics in 1976. In his view, we cannot allow transgender women to compete in women’s sport.
May I have the time back for taking that intervention, Presiding Officer?
The matter that Brian Whittle raises is one for sport’s governing bodies; it is not one for the bill that we are considering. Frankly, that issue is a distraction from what we are trying to do, which is to make easier the lives and the lived experience of the people in our community who are trans.
My party is satisfied that the proposals in the bill that create the new criminal offence of making a false declaration provide a deterrent for anyone who seeks to abuse the system. That safeguard has worked well in those countries that have gone before us. The spaces that are cited by those people who oppose reform are protected by many safeguards, as well as personal judgment and assessment. There is no challenge to any of those protections in the bill.
I am fully aware of the fact that, as a man, I do not live with the inherent fear and anxiety that many women so often feel about their personal safety in society. A huge amount must still be done so that women feel safe in public. Although that discussion is one that we must address in the round with urgency, this is not the forum for that vital debate. That issue deserves its own act of Parliament.
It is important to note that the stage 1 report by the committee that scrutinised the bill—whose work I commend—said:
“when asked about evidence of abuse and concerns, no witness was able to provide concrete examples.”
Let us be clear: any threat to women does not come from trans people but, as the cabinet secretary said, from predatory and abusive men who do not need a licence or any form of certification to abuse women. Trans women also fall victim to those same offenders and are twice as likely to be victims of violent crime as the average person.
At its core, this legislation is about human rights. It is about respecting the dignity and autonomy of transgender people who have been waiting far too long for reform. That is why I and my party are so proud to support it today.
We move to the open debate.15:40
It is a great privilege to speak in this debate.? As a member of the committee scrutinising the legislation, I can assure members that our process has been robust. As the convener has mentioned, we heard from a range of people and organisations with varying views about the bill.
I thank everyone who gave us evidence. Despite what we might sometimes see on social media, I am sure that all committee members will agree that the process was carried out in a very respectful manner. It is important that, as the convener has done, we pay tribute to the clerks for their amazing and tireless work on the bill. They really have been exceptional.?As the cabinet secretary has outlined, that thorough committee process complements the two consultations that the Scottish Government ran on the topic.
Why do we need the bill? We all know that trans men and women are among the most stigmatised people in our country and that many find the current system for obtaining a GRC to be intrusive and demeaning. There is no doubt that the committee heard that directly in what was, at times, very harrowing evidence.
The bill does not give trans people any new rights; nor does it change the Equality Act 2010. It simply makes the process of obtaining a GRC much simpler, less degrading and more humane for trans people.
People in that often stigmatised group already have poorer health outcomes than those in the general population, and hate crimes against trans people are increasing year on year. Those in that already marginalised group need their Parliament to stand up for them and we can do that by making a very small change that could impact greatly on their lives.? Therefore, it is perhaps obvious why all parties in this chamber have had a commitment in their manifesto at some point to change the GRA—indeed, many of us here stood on that commitment in the previous election. It is because we all have a core belief—every one of us here believes—in human rights, and trans rights are human rights.?
There has been a lot of talk about what the bill does and does not do. Despite the best intentions of individuals and organisations, misinformation can quickly circulate. The primary thing that the bill does is to remove the need for a gender recognition panel and a medical diagnosis.
When the committee was carrying out its scrutiny, did it find out how many people are, under the current system, which is being done away with, refused a GRC and what the reasons are for those refusals?
I might come back to that, but I direct the member to the committee’s report, which is very detailed.
As I said, in our evidence, we heard quite widespread support for the removal of the need for a gender recognition panel and medical diagnosis. That support came from the Scottish Human Rights Commission, Rape Crisis Scotland, the Church of Scotland and many others. [Fulton MacGregor has corrected this contribution. See end of report.] The approach is also very much in line with the World Health Organization’s redefinition of gender identity-related health and it is in line with the approach that many other countries take, including Ireland, Norway and New Zealand.
The bill also reduces the period for which someone must live in their acquired gender from two years to three months. We had some concerns over the phrase “acquired gender”, but, ultimately—this might answer Ruth Maguire’s intervention—we found it difficult to find an alternative and accepted that the phrase had a legal basis. We also agreed by majority that the waiting period should be reduced, but we were not initially clear as to why a period of three months was selected. I welcome the Government’s response to us on that issue. The bill also lowers the age at which someone is eligible to apply for GRC from 18 to 16.
Will the remember accept an intervention?
I apologise; I have already taken one.
I think that it is fair to say that that was one of the most contested areas of the bill, with strong arguments made in favour of both ages. I was pleased that the cabinet secretary reflected on that in her evidence to us when she spoke about how the Government came to its decision.
As we have heard from Alex Cole-Hamilton, the bill also introduces a new criminal offence to make a false statutory declaration or application, with a punishment of up to two years and/or a fine. Although we had some reservation about that provision, we hope that it will provide an additional safeguard.
I now turn to some of the concerns that were raised. Those concerns are strongly held and they should not be easily dismissed—to do so would dilute our own process. In committee, we did not do that, and we asked the questions of witnesses that would be expected of us. I hope that the committee process will help to build consensus as we move forward.
We were convinced, after a lot of questioning, that the bill simply does not have the remit to affect the rights of women and girls or single-sex spaces. No one in this place would want that to be the case, and I know that the Government is fully committed to protecting women’s rights.
We heard from many organisations, including Engender, Amnesty International Scotland and the National Union of Students Scotland, who told us that there would be no impact. The children’s commissioner captured that point. He said:
“We ... should have a lot of discussion about strengthening protections against individuals who are a risk”
“imply a whole category of people poses a risk and restricting their rights”.—[Official Report, Equalities, Human Rights and Civil Justice Committee, 24 May 2022; c 9.]
I turn to the issue of sport. We were told by sportscotland that sport bodies can already make restrictions and that the bill will have no impact on that. That is, again, reassuring, and I direct Brian Whittle to the report.
In terms of the impact on prisons, the Scottish Prison Service was very clear that there will be no impact. In commenting on its gender identity and gender reassignment policy, the SPS said:
“we take an individualised approach—in other words, things are taken on a case-by-case basis.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 7 June 2022; c 9.]
However, if the impact on prisons is an area of concern, Lucy Hunter Blackburn gave us a possible amendment to think about when she told the committee that that aspect
“is one of the easiest things to fix. The bill could be amended to say that a GRC is not effective in prison allocation decisions. That would leave things back where we want them to be—in the hands of the people who make those decisions. It is a relatively fixable part of the bill.” —[Official Report, Equalities, Human Rights and Civil Justice Committee, 31 May 2022; c 27.]
That brings me to my final point.
Will the member take an intervention?
My apologies—I do not have time.
If we vote for the bill at stage 1 today, I know that the committee and the Government will have an open door ahead of stage 2, as we all want to build consensus and make law as good as it can be.
For any of my colleagues from all parties who are thinking of not voting in support of the bill today, I would simply ask them why that is the case. Yes, there is still a lot of work to be done. However, I hope that, by working together, we can make improvements and build further confidence. At its core, the bill is narrow and really only impacts one group of people—a group that is already marginalised—and we have heard that its impact will be positive.
Other countries have taken that action without experiencing the negative impacts that some people are worried about, so why should we not do so, too? Scotland is not somehow inferior to those other nations. Trans people in Scotland, like everywhere else, deserve their Parliament to stand up for them, and I am sure that many of them will be watching today hoping that we can do just that.
The bill will not impact a great number of people, but it will mean great things for a few people, so I strongly encourage everyone to vote for the bill at stage 1. Let all our voices come together and let us move forward as one.15:47
Sometimes politics is about following your heart; today, I will speak from mine.
I want to share the things that I know, and the things that I do not know. Here is what I do know: I know what it feels like to grow up feeling different and what it feels like not to understand why you feel different or who to turn to for help or advice. I know what it feels like to be told that how you feel is just a phase, or that it is somehow to be suppressed—or even worse, that you are immoral or delusional, or mentally ill and destined to a life of misery. I know what it feels like to be threatened, marginalised, bullied and discriminated against. I say directly to the trans people in the public gallery today and to those outside that I hear you and I want to make things better for you. That is my commitment to you today.
Here is what I do not know. I do not know what it feels like to have fought for centuries for equality in a male, misogynistic world nor what it feels like to suffer violence at the hands of a man; I do not know what it feels like to be the victim of sexual violence or to seek solace in safe spaces. I do not know what it feels like to compete in professional sport and feel like I am playing in an unfair field; I do not know what it feels like to have a young daughter and to hold genuine concern about her welfare in public spaces or single-sex spaces.
I say to those people who have written to me in great volume that I hear you too, because that really is the dilemma that we face today—the undeniable need to improve the lives of trans people while protecting the rights of others.
We also need to pass good law. The onus is on us to pass good law without unintended consequences—something that we are not very good at in this place, to be honest. I do not envy the Scottish Government, but neither do I have much sympathy for it, because it has managed to fuel at the same time so much anger on the sides of both those who support the reform and those who oppose it.
I will be clear. Outcomes for trans people in Scotland are shockingly poor. They have poor access to medical, physical and mental health support, and high rates of suicide and self-harm; and there is a failure to tackle growing transphobia. The bill fixes none of that. Perhaps it should do so.
Undoubtedly, the debate over the years has been toxic. There is a spectrum of views: those who believe that the Government is not going far enough, for example because of the exclusion of non-binary people from the bill; and those who vocalise valid concerns, which have largely been ignored. However, there are those who are barely—or thinly—hiding transphobia among some of those concerns, if we are honest.
I think that most people want to do the right thing for everyone in Scottish society. Equally, I cannot help but feel an air of sadness at some of the arguments that have been used against the reform of gender recognition, which are often, word for word, the same arguments that were used against the age of consent, against gay rights, against same-sex marriage and against same-sex adoption—words that, decades later, are being used to justify academic arguments about why the bill and those who support it are wrong. We have come such a long way in Scotland in our equality rights. I am proud of the progress that we have made. This feels to me a little bit like the last great hurdle.
All that being said, however, I need to be honest: I have some reservations about the bill as it is drafted. I have concerns about the interactions between the bill and other people’s rights, freedoms and equalities. I do not think that those have been fully considered or addressed by the Government, as is evident by the debate today. It is also evident by the schisms in view between the EHRC and the Scottish Government’s interpretation of its guidance. It has admitted that it recognises the need for more guidance on the use, for example, of exceptions in same-sex spaces. Guidance is not good enough for everyone. That is clear. The bill must be clear about that, and it must be addressed as the bill progresses through the Parliament.
I also have wider problems more generally with inconsistencies in how the law treats those aged 16 and 17. The law says that they can vote but cannot gamble, and that they can serve in the Army but cannot drink alcohol to celebrate that; and now we are being asked that they should be able to self-identify their gender and seek medical intervention and the lifelong implications that that sometimes brings. Professionals have emailed me to say, “This is utter madness. You cannot let that happen.” However, equally, many young trans people have written to me, begging and pleading, “Please support this. We need this, and we have the right to do it.”
I will be honest. I do not know what the answer is, because everyone is an individual. However, the Government must be led by evidence. It must do the right thing for young people, which both protects them—as it must—and respects their soundness of mind.
I also see why concerns have been raised about the three-month period of living in the “acquired gender”, as it is called. As some have pointed out, what does that even mean? It does seem a big jump—from two years to three months. I understand that. I understand that people have problems with that. However, I also understand that people think that it is a good move, which treats people with more dignity and respect. I ask whether there is perhaps a compromise to be had.
I also understand why some people put great faith in the solemnity and gravity of statutory declarations. They see those as a safeguard. However, others see them as little more than the pieces of paper they are written on. Safeguards are vital in this conversation, but let me be clear: predatory trans people are not the problem. Predatory men are the real problem. [Applause.] The law must be robust in dealing with those who use a process of changing their gender with malintent. If the bill is not clear about that, it should be. We will help the Government to fix that.
All those issues are, rightly, being debated, and I thank my leadership and colleagues for allowing me to express my personal views, even though they may differ from theirs. I did not expect much applause today, because that is not what I am after; what I am after is to make good law, as should we all be.
I close by sharing two very important beliefs that I hold, which are important to the debate. They are personal to me. The first is that I do not believe that being trans is a mental illness—any more than I believe that being gay is a mental illness. I support previous commitments, publicly made by UK Conservative Governments, to remove that from the process. If it is good enough for Theresa May and Penny Mordaunt, it is good enough for me.
The second is that reform of this nature must be achieved in a way that betters the rights of everyone and does not degrade them—a point eloquently made by Engender in its submission to us. I know that there are strong views in this debate, but those are problems that the Government must fix—it is its bill after all—and we will help it to do that if it so needs.
Friends, I will support the passage of the bill at stage 1 today, because I owe it to a community that has given so much to me over the years. I urge colleagues to think carefully about how they vote: those who have been granted the personal freedom to make that choice themselves and those who are being whipped into a party position—a situation that I do not envy.
I end on a warning: this cannot end up a dog’s dinner of a bill that simply divides people and fuels the othering of anyone. Instead, I want it to bring us together under one common goal of making every single Scot feel safe, welcome and included—every single one of us. I know that that is easier said than done. I wish the Government luck because, having listened to the debate, I think that it will need it.15:55
To my colleague Jamie Greene, I say that some of the things that he said he does not know, I do, and I am honoured to have the privilege to talk from that point of view today.
This is a wonderful day—a day when I can stand in this chamber and take part in shaping legislation that will improve the lives of citizens in Scotland who are some of the most marginalised, misunderstood and vilified people in our society. The progress that Scotland was making to become a world leader in human rights has undoubtedly been hindered by a campaign of fear and misinformation against the trans population. Trans people continue to suffer poorer outcomes relative to the wider population, and we have the opportunity to do something that takes a small step to improve those outcomes.
The Scottish Government must work, and is working, to promote the rights of everyone—disabled people, black and minority ethnic people, LGBTQ+ people and women—to protect them from discrimination. We, as lawmakers and public figures, have a duty to work to end the stigma and prejudice that is often experienced in this context, particularly by trans people, so that they feel safe, secure and accepted in our society. My goodness, they need it.
We all know our minds. Why are trans people any different? If we think that they do not, we need to reflect deeply on that internal bias and confront that discrimination. Trans people should be trusted to make decisions about their own bodies, and it should be a fundamental, given right to have bodily autonomy and the freedom to take up space in this world without being impeded by anyone else.
The Gender Recognition Reform (Scotland) Bill does not even introduce any new rights for trans people; what it does is to reduce the trauma that is associated with the process of obtaining a gender recognition certificate. It simplifies the administrative process to gain legal recognition, which has been a right for 18 years. It is such a small change, but it is a change to remove barriers, gatekeeping and that impeding that I spoke of.
The bill would demedicalise the process, which is nothing new, and move us to a system that is based on freedom, choice and respect. 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. In 2018, Scotland was hailed as a world leader on human rights for our inclusion for LGBTQ+ citizens and for things such as inclusive education. However, if we do not pass the bill, we will be behind the times.
It is crucial to the debate that we add the voices of trans people themselves, and I urge everyone in the chamber to reach out to the Equality Network and the Scottish Trans Alliance or, like I did when I had questions about the community, go directly to them. I asked if I could hear from those who had lived experience. I was able to connect with trans people and listen to them and their stories. Unfortunately, there were some truly harrowing accounts, which were experienced only because they were trans. I sincerely thank them for putting themselves in the position of having to relive their trauma so that they could help others.
Just before we came into the chamber, I had the opportunity to go outside and talk to some trans people. As I was leaving, I was pulled aside and thanked for listening. I was chatting to one person and, just as I was leaving, they said, “Oh, by the way, my name is Russ.” I could not believe it. I said, “My speech today has a quote from you in it.” That chance meeting really deepened my resolve to work harder for our trans siblings. I will read out the quote from Russ:
“I would feel safer with a GRC, but the current process risks re-traumatising me because of harm already inflicted by psychiatrists. When I first told a psychiatrist that I was trans as a teenager, they prescribed me electroconvulsive therapy. The harm this did meant I did not feel safe to come out again and transition until I was in my 60s. For the sake of my mental health, I can never again allow some authority figure, who doesn’t know me, to decide whether I am who I say I am.”
When we make law in this chamber, surely, the best laws are made with the lived experiences and the people that they affect at the core of the process. We know that laws that were made before women’s voices were included not only discriminated against us but were detrimental to us. We are all human and deserve rights that help us and not hinder us. Trans people are entitled to human rights. They are as valid as you and me and everyone here. They are entitled to protection, validation and support in law and to be given any opportunity to have the equal footing that we should all have without discrimination.16:01
I am pleased to have the opportunity to contribute to this important debate at stage 1 of the bill. In rising to speak, I am pleased to follow colleagues who have made contributions that are constructive and respectful in tone, particularly Karen Adam, Pam Duncan-Glancy and Jamie Greene. I recognise all too well the truth that Jamie Greene opened his speech with.
I will focus my contribution on the bill that is before us, but, at the outset of my speech, I will comment on the public discourse about and around the bill. Over the past few years, the tone of the debate has reflected poorly on our nation. It has been divisive and toxic. In the vacuum that was created by the legislative process being delayed, interpretation of the bill has led to conversations that have been hurtful, damaging and largely related to what is not in the bill and what the bill does not do. I believe that there has been too much heat and not enough light.
In his important and deeply considered book, “Building a Bridge”, the Jesuit priest Father James Martin considers how we must build bridges of respect, compassion and sensitivity between those who have come to fundamentally different viewpoints. He speaks in the context of a bridge between LGBT people and the Catholic church, hence my interest in his work.
He speaks about fundamental truths that can be transposed and about the use of names to respect the fundamental dignity of every human person. He speaks about the way that we describe a person and about calling them what they ask to be called. He talks about respecting identity and humanity and not applying generic, pejorative terms to whole groups of people, no matter how much we fundamentally disagree.
Let us be honest: the rhetoric has often dangerously veered into transphobia and homophobia, even in public life, such as the corridors of this place and in our council chambers. That is always unacceptable and must be addressed.
I recognise that there are people who have views that are sincerely held and who should not be described in pejorative terms as part of one larger group. We all have a duty to conduct our discussion better, particularly in online spaces. Perhaps I am naive to continue to believe in building that bridge, but it requires respect, compassion and sensitivity.
I turn to the bill. In our 2021 manifesto, the Scottish Labour Party committed to reforming the 2004 act to demedicalise the process of applying for a gender recognition certificate. That was a manifesto commitment on which we were elected and a pledge to trans people, who are one of the most marginalised groups in society, as we have heard from colleagues today.
In supporting reform of the 2004 act, I am proud to support not just party policy but the position of LGBT Labour, which has been in existence for more than 40 years and has been affiliated to the Labour Party since 2002.
I am also following in the footsteps of former Labour parliamentarians such as Kezia Dugdale, our former Labour leader, and my predecessor in representing West Scotland, Mary Fee, who proudly championed the rights of trans people in this chamber and continues to advocate reform of the GRA from outside the Parliament.
Of course, I understand and appreciate that some people have raised concerns about aspects of the bill in its current form. That is why it is incumbent on all members of Parliament to take our responsibilities seriously, to properly scrutinise the bill at its further stages and to ensure that it is fit for purpose and protects the rights of all.
Scottish Labour believes that the reforms must demedicalise the process and that the process for applying for a GRC set out in the 2004 act should be replaced with something that is more accessible and dignified, that is administrative in nature and that is not overly complex.
The bill details who can apply for a gender recognition certificate and whom the application will be made to, but it does not specify the form that the application will take. I think that clarity on that is extremely important in order to provide confidence to all. As we have heard from my colleague Pam Duncan-Glancy, we will seek to work with the Government in that space.
The Equality Act 2010 has been referenced in a number of contributions today. The act is one of Labour’s proudest achievements in government. It protects both women and trans people from discrimination, along with—as Pam Duncan-Glancy outlined—disabled people, gay people and those with a variety of other protected characteristics. That is why, as the bill proceeds, Scottish Labour will take action to ensure that it is clear in the legislation that, for the avoidance of doubt, the protections in the 2010 act remain in place.
We will scrutinise the bill with intensity as it continues to make its progress through Parliament. It is important that the bill is robust and commands confidence not only in this chamber but outwith the chamber, among the wider public.
We must not lose sight of the purpose of the bill: it is about giving trans people the right to live their lives with dignity and respect. From a broad perspective, I believe that the general principles of the bill, as outlined, will improve the lives of trans people in Scotland by ensuring that they do not have to go through the current process to achieve a gender recognition certificate—a process that is, as we have heard, lengthy, traumatic and undignified.
However, along with colleagues, I respect the need to continue to work hard to scrutinise the bill to try to build that bridge so that everyone can have confidence that we are delivering legislation that will be respected. I hope that that is a shared objective that we can all work together to achieve as the bill progresses.16:08
I am grateful for the opportunity to speak in today’s debate. I guess that I am here to represent something of a minority view within the SNP: people who are not entirely happy with the bill.
Yes, it is Government policy. However, as I suspect is the case in other parties, too, there are a range of views within our party on this topic. I particularly wish to express my respect and admiration for Ash Regan, who has resigned over the issue today.
I should probably say that, within the SNP, those who are considering voting against the bill at stage 1 are doing so for slightly different reasons, so I am not speaking for, or on behalf of, anyone in particular, but I will try to cover some of the main concerns.
Will the member take an intervention?
I will not, if the member does not mind—I think that I have a slightly niche area to deal with. I will see where we get to later on.
When I started thinking more about this issue some time ago, a couple of key words that came to me at that point were truth and love. From a Christian faith perspective, one of our key beliefs is that we should love, accept and care for every individual person. Many others with no faith angle would completely agree with that.
Every person on this planet is of equal worth and deserves to be valued. That includes people we strongly disagree with or who are different from us in a variety of ways. Therefore, as others have said, the tone of the debate today and beyond is important, and, so far, I think that it has been quite good.
We might disagree on the best way forward on gender recognition, but I hope that we can all respect one another for having genuinely held beliefs as to what is best for all of our society and for people who have questions about their gender.
My first theme was love and care for each person, and my second word is truth. We all might want, and probably do want, the world to be different from what it is. We want less poverty, fewer wars and so on. Most of us are in politics to try to change those things. However, there are certain things that we need to accept as scientific or medical facts. The earth goes round the sun once a year, and days are shorter in winter. Those are facts, whether we like them or not, and we have to accept them. I understand it to be a fact that there are two sexes: male and female. Each person is born on a certain day, in a certain place and with a certain mother, all of which is recorded on a birth certificate. A person’s biological sex is discovered on that day, or possibly earlier if scans are used, and that biological sex cannot be changed. That is important, especially for healthcare rights later in life.
When it comes to gender, there is much less agreement about what that actually means. Some would say that it is the same as sex, and that probably used to be the case in the past. The meanings of words can and do change over time, however, and I for one personally see gender as a much more fluid concept, with different people understanding it in different ways. I, personally, am relaxed about that. By all means, people can dress as they want, have relationships with whom they want and call themselves whatever gender they want. However, let us not let that undermine the fact, pleasant or unpleasant, that their sex was discovered at birth and cannot change.
I move on to another angle in the debate: the impact on women. For hundreds of years in this country and around the world, women have been treated as second-class citizens in the home, at work—especially when it comes to pay—in the political field and, sadly, when it comes to physical and other forms of abuse in the home and beyond. I am glad to say that we have made some progress in that regard, although not nearly as much as we should have. In some other countries, including Iran, the position and treatment of women is frankly appalling.
It has been argued that the bill does not change the position of women or impact on their rights in any way. However, it certainly does increasingly blur the distinction between men and women. If it becomes less clear who is a man and who is a woman, it almost inevitably becomes more difficult to ensure that women are paid equally and are equally represented in Parliament and elsewhere, and it becomes more difficult to ensure that women have access to safe spaces, including in prisons, where they can be reasonably certain that no men will be present. Let us make no mistake about it: as has been said, it is men—people whose biological sex at birth was male—who are consistently a threat to women, be that physically, mentally or emotionally. Just to choose one statistic that I picked up, I note that, in domestic abuse cases, 92 per cent of those being prosecuted were male. Clearly, therefore, it is important to know who is male and who is female.
Therefore, although, on the face of it, the bill might be considered to deal only with some technical issues pertaining to gender recognition certificates and the like, it also sends out a wider message. Of course, that is true of much legislation. We pass a law, but we are also sending out a wider message. For example, we banned smoking in public places, but we were also sending out the message that smoking is harmful to health and should be reduced. We put a minimum price on alcohol partly to send out the message that the country drinks too much and we should all cut down. We passed the hate crime legislation to send out the message that our attitudes towards one another need to improve and that we all need to become more tolerant and accepting. In the same way, I fear that this bill, if passed, would send out the message that the distinctions between male and female are not really relevant, and that in turn would undermine our efforts to ensure that women have their rightful place in our society.
Finally, I note that the trans community is not totally united on this matter. I have met a range of people over time, and a number of them support a broad continuation of the present system. They would argue that gender dysphoria is a recognised condition and that it can and should be independently assessed.
For all of those reasons, I am very much afraid that I cannot support the bill.16:14
In the history of this Parliament, today will be remembered. For the first time after far, far too long, we have the opportunity to do something that is, on one level, rather ordinary but which is immensely precious. Today, we assert the simple right of all trans people, with dignity and respect, without unnecessary intrusion, expense, medicalisation or stigma, to ensure that their documents of identity accurately record that identity, so that, if they choose to marry the person they love, they can stand beside them as who they really are, and, at the end of their lives, they know that that life, and that death, will be recorded as their own, not those of a non-existent stranger.
That is something ordinary, something simply human, but which has been brought about by some extraordinary human endeavours. We owe a great debt today to our trans and non-binary friends, colleagues, comrades and relatives; those who have campaigned and explained, written, sung, painted, marched, prayed and believed. Today is for them. We see them and we thank them.
Today is also for all those trans people we have never met, never heard of or from; those who have never been able to write to their MSP, respond to a consultation, perhaps never told anyone that they are trans—maybe scarcely even told themselves. Wherever they are, today is for them. We acknowledge them and we keep a place for them.
Today is for our children and young people—those with supportive families who struggle alongside them and those whose relatives have turned away. We look to the future, to a time when being trans or being cis is simply a facet of being human, like being gay or straight, left-handed or right-handed. Today is for them. We welcome them and we stand with them.
Today is also for our trans friends and neighbours, those known to us and those unknown to anyone, who are no longer with us, who chose not to live in a world that could not, or would not, see them for who they were. We grieve for them, and we hold them in our thoughts.
We do not forget those elsewhere in the UK who have had their promises of reform cruelly trampled by a toxic Government that would rather play at culture wars than keep its word. Today may not be for them, but I hope that tomorrow will be.
This bill has been assailed by a tsunami of disinformation, a heartbreaking moral panic manufactured and disseminated by a small number of people who should know better. I believe that many will come to know better and will bitterly regret the part that they have played in this process. I implore them to show courage—not the empty bravado that dresses in appropriated colours, delighting in the discourse of disrespect, but the real courage that looks with meticulous attention at our history, sees the patterns of oppression recreated, recognises shared experience and is not afraid of difference. Today is not for them, but it could be. There is still time to join us.
We are not yet where we want to be. The bill itself does not do everything that we want it to do. Some of those gaps can potentially be filled in the stages ahead of us. I make no secret of—and no apology for—my call for the three-month waiting period and the three-month reflection period to be taken out of the bill, for a reconsideration of the problematic person of interest provisions, for the removal of the redundant and stigmatising new criminal offence and for proper end-of-life provisions to be secured.
Some of the gaps will take longer to fill and will need new laws and processes. However—I say this particularly to people in the public gallery and those who are listening online who are directly affected by the issue—I am determined that appropriate gender recognition for under-16s and for non-binary people will be part of our shared future. To them I say, “You are not forgotten.”
Of course, gender recognition is not the only imperative. We must and we shall, with urgency and resolve, ensure that trans healthcare is available to all who need it, when and where they need it. Further, we must and we shall comprehensively ban the despicable practices around so-called conversion.
Will the member take an intervention?
Before I close, I want to put on record my heartfelt thanks to my fellow committee members for their thoughtful work over the past months. I thank Joe FitzPatrick, the clerks and SPICe researchers for guiding us through the stage 1 process with consideration and care. Most importantly, I thank all those who gave evidence to us—in person or in writing—even those with whom I profoundly disagree. I especially want to mention the trans people, and their families, who spoke and wrote to us so movingly. I thank them for making themselves vulnerable, and for sharing their experiences and their lives with us.
The bill does something simple: it makes it easier than it is under the current process for trans people to be legally recognised as who they are. Ellie Gomersall, a young trans woman who gave evidence to the Equalities, Human Rights and Civil Justice Committee, said at the rally held outside Parliament this afternoon:
“Sometimes it feels like the hardest thing about being trans is the admin”.
The bill changes that, and only that. As others have said, the bill has been a very long time in coming. We know that there is a long way still to go, but today—together—we set our path in the right direction. We do so in solidarity, with gratitude and with love.16:20
Women are watching today. I hope that the SNP is listening. At the heart of this matter is how we make trans people safe without affecting the safety of women and girls. That is the policy question that we, as elected politicians, must answer. It is a fair and balanced framing of the issue.
However, simply for asking that question, women—including the likes of J K Rowling—are being vilified. Their treatment throughout this process has been disgraceful. How are policy makers and members of the public supposed to scrutinise this proposed legislation—or any legislation—when they risk being maligned for doing so? It is our role, and our duty, to examine the consequences, unintended or otherwise, of the laws that we make. As we reflect on the general principles of the bill, we must reflect, too, on the political and public discourse that has surrounded it, and we must learn from it.
The SNP has been attempting to reform the Gender Recognition Act 2004 for half a decade. Despite taking additional time to review its approach, there has been little material change between the plans on which the Scottish Government first consulted in 2017 and the bill that we are debating today.
Following a second consultation, and a delay due to Covid, the SNP-Green Government bulldozed ahead, ignoring the SNP’s own manifesto commitment to work with women on the reforms, until pressure from critical media coverage forced its hand. Meetings with women’s interest groups were hastily arranged, but the bill had already been finalised. It was a tokenistic gesture.
In January this year, the Equality and Human Rights Commission urged caution, calling for a “more detailed consideration” given the potential consequences of reform for data use, competitive sport, barriers facing women, and the criminal justice system. Meanwhile, Nicola Sturgeon dismissed women’s views about the bill as “not valid”—a far cry from the “maximum consensus” that the Scottish Government originally said that it was seeking.
There are fundamental issues with the bill’s approach. Those include the lowering of the minimum age for application to 16, the removal of the need for medical evidence and the reduction in the period for which applicants must live in their acquired gender. There are, of course, serious implications for the safety of women in single-sex spaces.
The bill is also scant on detail. The Scottish Government is still unable to tell us precisely what it means to
“live in the acquired gender”
for three months. We still do not know how it is possible to prove a false declaration without the individual confessing to it, which makes the provision a redundant deterrent for misuse.
What of the cross-border implications of the bill? The Equality and Human Rights Commission has warned that it may be difficult for trans people with Scottish GRCs to
“be certain of their legal status in England and Wales.”
The law is supposed to provide clarity, not question marks.
I worked at a senior level in human resources for more than 30 years. Inclusion and diversity are deeply ingrained in my personal and professional outlook. So, too, is safety. The Scottish Government has done nothing to convince me, or many others, that the legislation will not negatively impact the safety of women and girls, as well as the safety of young people who are questioning their gender identity.
This week, a mother wrote to me, imploring me to consider the implications of the bill for young people. Drawing on the incredibly difficult experience of her daughter, she described the legislation as a “sticking plaster” and highlighted the need for profoundly improved supportive mental healthcare for children and adolescents who are exploring their gender identity.
Should the bill be passed, the removal of the requirement for a diagnosis of gender dysphoria will not diminish the distress that a 16-year-old can experience in that situation, but it risks removing the safeguards and clinical support that are available to them. I deeply regret that the Scottish Government will not wait for the full publication of the Cass review before proceeding with the parliamentary passage of the bill, especially with the closure of the Tavistock centre in London next spring.
The intent behind the Gender Recognition Reform (Scotland) Bill might be good, but the unintended harm could be greater. For that reason, together with the implications for the rights and safety of women and girls, I will vote against the bill at decision time. It is shameful that MSPs from other parties who share my concerns—apart from Ash Regan, who showed tremendous courage—cannot do the same.16:26
Transgender people are not new. As long as there have been people, there have been those who do not subscribe to, do not fit into, do not feel or who simply are not the binary distinction of normative gender that many cultures have mapped far too closely on to the indisputable scientific genetic distinction of sex.
Transgenderism can be seen in the relics of antiquity in Sumer, Greece and Rome, and transgenderism has been prevalent in the villages of rural Siberia, where environmental factors skewed the balance of the sexes. Trans visibility has been noted in the high liberalism of the Weimar republic and increasingly across much of the west, including, thankfully, this country, which now affords rights and freedoms to all. Therefore, transgenderism is not new.
What is new—
Will the member take an intervention?
I will not at the moment; I will make some progress.
What is new is the much wider availability of novel therapies and transition surgeries, alongside limitless social media information. With those come possibilities for better lives for people who have suffered in silence or in anguish. However, they also bring significant risks, especially when the pace of laws outstrips societal understanding. Hegel, in his “The Phenomenology of Mind”, argued that
“identity of the self is entirely dependent on its recognition by others.”
Public recognition and personal identity are intertwined for every single one of us. Seeking legal recognition is no mere validation of personal affirmation; it is a core function of the modern state and an expression of liberty.
Yet, biological sex remains the definitive organising fact of our state and society. From cradle to grave, whether a child has two X chromosomes or single X and Y chromosomes will define their health, physical development, strength and speed. Society and culture wrap those things in a bundle of patriarchy and misogyny—
Will the member take an intervention?
I will in a second.
Society and culture wrap those things in a bundle of patriarchy and misogyny, and sex matters even more—
On the point about chromosomes, intersex people exist. How does that match up with what the member is saying?
That matches entirely with what I have said. There are intersex people who have a mix of sexual organs, but the genetic side of this is about having two X chromosomes or an X and a Y chromosome. That is the basis of the biology.
Will the member take an intervention on that point?
No, I will not. We could maybe discuss it later.
As I said, society and culture wrap those things in a bundle of patriarchy and misogyny, and sex matters even more with regard to status, standing, wages, whether a person can walk home at night, whether they might wake the following morning, whether they are raped or whether they require medical treatment in a system of education that trains doctors to understand that body as an aberration rather than as the majority.
Women’s sex-based rights are often self-policed by recognition of danger on sight, and then by avoiding or removing themselves from danger. There are also more intimate settings where women are even more vulnerable. When they are in hospitals or prisons, when they are receiving intimate care, when their mental capacity has been diminished by age or disease, when they have been the victims of violence by men or are at risk of violence by men, women require the sex-based protections that are afforded by the Equality Act 2010.
That is almost never the case because of other women or because of trans people. It is overwhelmingly, as other members have said, because of the behaviours, attitudes and violence of men in our culture. This debate takes place in the context of a rising tide of misogynistic violence. The many representations that I have received from women ahead of today’s debate detail well-founded concerns that have not been answered by the Government about the protections that are guaranteed to them in the Equality Act 2010. That act, the protections and the promise of security, progress and safety, which were legislated for by a Labour Government, must be guaranteed in the bill, so Labour will seek to amend the legislation to that end. It is right that today we vote for progressive reform for trans recognition, and for the chance to amend the proposed legislation.
Confidence in the new process for obtaining a gender recognition certificate is paramount. Trans people should know that the process commands their confidence and that of the wider public. The bill as drafted has very few safeguards to prevent its being abused by bad actors. Scottish Labour believes that consideration should be given to how the application process can be strengthened to command the broadest possible public confidence.
I believe that a countersignatory process would help to build that confidence. It would mean that applications would not be made in solitary isolation. A comparable process is the one for changes to passports, to which all citizens must adhere when amending their personal details. It is widely accepted that the signature of another person is required in that process for recognition of the change; it is a standard part of our day-to-day life. If it were properly developed and implemented, such a countersignatory process could serve to protect all parties better. Recognition is, in the end, about how we relate to each other—how we are seen in our community.
The bill proposes a reduction in the age restriction for applying for a gender recognition certificate from 18 to 16 years. The Government has made a very poor job of answering critical questions that have been posed about that, including questions from the Equalities and Human Rights Commission. I believe that, given the risks, significant development of the case for the change is necessary before it can command the widespread public and political support that it needs.
I believe that it is the job of Parliament to find common ground in the country—to balance the need for reform with the need for protection of existing rights. The struggle for recognition is a practice of freedom—so said Wittgenstein, Foucault and Arendt. That struggle is just. Yet the balance of rights and common perceptions can easily be tipped. Unamended, the bill will fail the test that was set by the First Minister herself: that the rights of trans people and women can both be secured. The Government and the cabinet secretary have a very long way to go in the coming weeks, before the bill can pass that test.
Emma Roddick will be the last speaker in the open debate. You have up to six minutes, Ms Roddick.16:33
I want to say first that trans rights are human rights. As a woman, I do not feel that they are in conflict with my own.
I speak today to defend the right of others in the LGBTQI community to be who they are. Access to documentation that reflects a person’s gender is necessary for privacy, for expression and for just living as what they are. It is paradoxical to me that a person must live in their so-called acquired gender for a period before accessing documentation that allows them to live in their acquired gender, but after listening to speeches today, I suppose that it might need to be the next reform of the Gender Recognition Act 2004 that remedies that.
There should be nothing controversial about what we are discussing today. We are simplifying a process that trans people—in great numbers and over a long period of time—have told us is humiliating and intrusive. We are removing from an administrative process a medical aspect that has no reason to be there. Being trans is not an illness, and our law needs to reflect that.
I have a members’ business debate pending on mental health stigma, and many of the points that I intend to raise in it are relevant today and to trans people. Demedicalisation of the process to have trans identities recognised is the right thing to do and it is overdue. The World Health Organization has, in the current edition of the international classification of diseases, already done away with that. That the permission of doctors and panels is still required is an anachronism; it simply does not make sense for it to remain.
Does the member agree with the Scottish Government’s equality impact assessment on the bill, which says that we need
“More up-to-date research on”
how the bill will affect
“the mental health and wellbeing of”
our young people?
I think that we need to do a lot of work on supporting trans people overall, but particularly young trans people, with their mental health. I am sure that we will discuss that in detail when, in the future, we discuss healthcare for trans people.
A Council of Europe report that was published in July outlines the need for steps to be taken to depathologise legal gender recognition. I agree with Karen Adam that we will be behind the times if we do not pass the bill. Actually, I think that we are probably already behind the times; the bill will let us catch up a little. Nothing in the bill is a new idea. We are very slowly catching up with international best practice.
In fact, whatever some people would have you believe, what is in the bill is not even new to this country. I remember sitting on my lunch break as a teenager with my phone out, watching Shirley-Anne Somerville give a statement on forthcoming gender recognition reforms—reforms that every party that is represented in the chamber today backed in their 2016 manifestos. Trans people have been promised the improvements for a long time; there is no justification for allowing this to drag on any longer.
I agree with the various members of the Opposition who have said that the debate should be respectful, but I cannot agree that it should “remain” respectful because it has not been—we cannot kid ourselves otherwise. In the course of this afternoon alone, I have heard members repeatedly misgender trans people whom they are talking about and I have heard outright denial of the legitimacy of transgender identities. There is nothing respectful about transphobia, and the things that I have just described are transphobia. I refuse to submit to claims that such statements are respectful just because they are said in a polite and even tone. They are never respectful; they are hateful and I will never be comfortable with them being spoken in a place like this.
I would like to offer one personal reflection, too, as a survivor. I am still, years into the debate, horrified by how some people use my experience to justify transphobia. I am traumatised, but I do not blame trans people or believe that their right to privacy is any less or any more important than my own. My trauma is the fault of a cisgender man, and he did not have to make a statutory declaration to legally change his gender in order to cause the harm that he did. Women have so many fights left to win on the route to equality. Fighting other women just because their experience looks different to our own gets us nowhere.
I regret that, today at least, we are not discussing legislation that will allow legal recognition of non-binary identities. I want to give special mention to my enby friends and to assure them that they are not forgotten. I recognise the position that they are in and I hope that it is not too long until we see justice for them. As a queer woman and current co-convener of the Scottish Parliament LGBTI+ cross-party group, I will always stand by my non-binary neighbours and I will keep on raising their lack of recognition until they gain it.
I had an email only yesterday from a trans constituent, which I would like to end on. They were grateful that they did not have to worry about how I might respond, as one of their representatives. I would like to share with members a small bit of the email, because, to me, it sums up what we are here to do today, and it is probably far more meaningful than anything that I could come up with, as a cisgender woman. They said:
“This is not my first time pleading my humanity to strangers. During the course of my transition, I’ve had to subject numerous intimate details of my life for scrutiny and judgement. It is always stressful and humiliating.
For me, that’s what the proposed changes to the process are about. It fills me with hope to think of all the collective time, money, and pain this bill could spare.”
I hope that we do the right thing by my constituent today and in the later stages of the bill, and that we keep in mind the trans people—the people whom the bill will actually affect—who are watching at home, scrolling on Twitter for news or sitting in the gallery above us. They have been waiting far too long for what many consider is still far too little. Let us keep our promises to them.
We now move to closing speeches. I call Jackie Baillie to wind up on behalf of Scottish Labour for up to six minutes.16:39
The benefit of being in Parliament for a long time is that you have a relatively long institutional memory. You have worked your way through literally hundreds of pieces of legislation; sat through lengthy stage 2s; explored what you can do with amendments, reasoned or otherwise; and become skilled at negotiation, both as a minister—I can remember that long ago—and with ministers of the current Government. You even learn to compromise, because our aim must be to have the very best legislation that we can get.
However, with no second, revising chamber and with legislation often progressing at breakneck speed, there is a particular responsibility on us in this Parliament to get it right. That means that it is right to challenge and to debate the issues, no matter how difficult that might be.
The Gender Recognition Reform (Scotland) Bill is both simple and complex legislation, and it is in the nature of these things that there will undoubtedly be challenges in the courts. The greater the complexity and the level of concern are, the greater the requirement is for us as legislators to examine the provisions and their effects carefully and consider whether there may be unintended consequences.
The Government has a responsibility to lead, but it also has a responsibility to take the country with it. Legislation is just one part of what the Government should do. How it spends money and how it sets policy are equally important.
Let me turn to this specific debate. I say very clearly at the outset that I support the general principles of the bill, but I have to say, as others have done, that the name calling and insults that have characterised much of the discourse have been unwarranted and unhelpful. So, too, have been the blanket assertions without much supporting evidence, which simply do nothing to promote understanding. Likewise, the fact that the questions that are often asked of Government are sometimes not fully answered does nothing to reassure people who have doubts. Complex and difficult issues demand of us a thorough and mature approach.
Concerns have been expressed from a variety of different perspectives and we have heard them today. Some people are vehemently opposed to the bill, and while I might disagree with them, I will always listen to their point of view respectfully. Others are hugely supportive and point to their own experience or that of their children of gender dysphoria and the lack of access to services, support and, actually, recognition of who they are.
There are those who are broadly supportive but are worried that there may well be unintended consequences. I want to address some of those concerns, as that will be an area of focus.
I very much hope to be able to support the bill at stage 3. I intend to abstain tonight. I have heard compelling speeches like the one that Jackie Baillie is developing from Michael Marra, Pam Duncan-Glancy and Jamie Greene. I wonder whether Jackie Baillie would welcome an assurance from the cabinet secretary that the Government will be open to constructive amendment of the bill given that, to be frank, its record on being open to amendments is not a strong one. Fulton MacGregor said that the committee will be open to them. Would Jackie Baillie welcome such an assurance?
I welcome that brief intervention from the member. I welcome what I think has been signalled by the cabinet secretary, but I am sure that she will take the opportunity to say in her closing speech that the Government will be open to that dialogue. I really hope that that is the case.
I turn to some of the issues that I would like to see addressed. I start with the point that a number of members raised about the Equality Act 2010. As I understand it, the Scottish Government will argue in court in relation to the Gender Representation on Public Boards (Scotland) Act 2018 that a GRC changes someone’s sex under the 2010 act. If that is the case, the argument that is made is that the practical impact will be that things such as single-sex provision will in effect not exist. I understand that people want clarity on that point, and it would be helpful if the cabinet secretary could address that, even if she does not do so today.
Women have specifically expressed concerns about the need to protect women-only services and spaces. I think that we recognise that women’s rights have been hard fought for and hard won. As Pam Duncan-Glancy said, all rights have been hard fought for and hard won. However, Scottish Labour understands the strength of feeling on the issue and the desire to ensure that women’s rights are protected. We will therefore seek to amend the bill at stage 2 to respect the primacy of the Equality Act 2010 and to have that placed on the face of the bill.
I turn to gender recognition certificates. We absolutely understand that the point is to simplify and demedicalise the process, and I agree with that. The Government has described who may apply for a GRC and who they will make their application to, but there is no description of how that will happen. We will seek to clarify that at stage 2 as well.
Let me turn to age. Many people have expressed concerns to all of us about whether 16 is the appropriate age. These are difficult issues and I do not necessarily know the answer. However, I am encouraged by the cabinet secretary’s willingness to engage on the issue with Christine Grahame, who raised the point first, and other members.
I want to touch briefly on the Cass review and its report on gender identity services for young people in England. It is an interim report, but its findings should inform how we deliver treatment and services in Scotland and at the Sandyford clinic. I know and welcome the fact that Healthcare Improvement Scotland has been tasked with developing national standards of care for Sandyford’s gender clinic for young people, but those will not be published until the end of 2023. I am sure that the cabinet secretary will agree that our young people deserve the best possible medical care that is based on clinical research and best practice, and we should urge the Government to accelerate the process.
I want to single out speeches from across the debating chamber, including those of Jamie Greene, Karen Adam, Paul O’Kane and far too many other members to name. There were powerful and personal contributions that challenged us to think.
I believe that reform is required and I will support the general principles of the bill, but there is room for improvement. Labour has a proud tradition of promoting equality and human rights. We introduced the Human Rights Act 1998 and the Equality Act 2010, and I am proud that it was Labour that repealed section 28 in the Scottish Parliament.
We will support the bill at stage 1, but the Government must understand that it needs to address the concerns that have been outlined in the debate if it wishes the bill to continue to command support across the chamber.16:46
I am honoured to close the debate on behalf of the Scottish Conservatives. I join my colleagues from across the chamber in thanking everyone from our witnesses to the clerks and the organisations and constituents who took the time to write to me, all of which I have taken into consideration.
As we have heard today, across the chamber there are strong views on both sides of the debate. With that in mind, due to limited time and the significance of the debate, I will not use the traditional route of closing the debate by summarising members’ contributions, and I emphasise that I will not take any interventions.
Although I do not doubt the good intentions of the members who vote in favour of the bill, the proposed law is a let-down for women and girls, faith communities and children who require the protection of the law.
Will Pam Gosal take an intervention on the point about faith communities?
I have said that I will not take interventions.
The proposed bill is ill thought out, ill considered and, worst of all, unpredictable. It seeks to remove any medical oversight and opens the process to a group of unknown size and characteristics. Perhaps there is no perfect answer that would solve all the issues, but do we not owe it to everyone—whether they are trans or not, religious or not, female or not, or a child or not—to spend longer seeking a fair way forward?
The vexed nature of the topic has seen those standing in opposition to bad legislation labelled “transphobes”. However, as a member of the Equalities, Human Rights and Civil Justice Committee, I can say with confidence that I have given the bill due consideration.
The removal of the requirement for a medical diagnosis of gender dysphoria, the reduction in the time that must be lived in the acquired gender, the lowering of the minimum age from 18 to 16 and the removal of the gender recognition panel strip the process of all current safeguards, leaving in their wake a flimsy criminal offence for a false statutory declaration, which is near impossible to prove.
Among the tsunami of emails that I have received from my constituents, there were several from people with lived experience of struggling with their gender identity. They urged me to vote against the bill, because they believe that, without the current safeguards, they would have embarked on a life-altering process as a child.
The lowering of the minimum age is irresponsible, especially when it is accompanied by the removal of medical oversight, which the Scottish Council on Human Bioethics has argued against. That is just one of the provisions that must be addressed, should the bill proceed to stage 2.
The SNP Government is ignoring the significance of the bill’s impact on the Equality Act 2010; meanwhile, it has used the significance of the proposed change in its argument in court. The Government has repeatedly dismissed the wider implications of the bill for women of faith and for women and girls more broadly, which is an issue that is extremely close to my heart. I am deeply concerned that the proposed law has not been drafted with them in mind.
I will give an example. For women of faith, when it comes to medical situations such as visiting a general practitioner, treatment by a member of the opposite sex might be a breach of religious practices. The presence of a member of the opposite sex would be a breach of the sanctity of single-sex spaces for women who perform partial washing in a public bathroom before praying. Such women are already a marginalised group in our society, and the bill could prompt them to self-exclude from public life to an even greater extent.
The Equalities, Human Rights and Civil Justice Committee has received evidence from the HEAL survivors group about women who have felt compelled to self-exclude from services that are offered by Rape Crisis Scotland because of its refusal to guarantee a women-only environment.
In addition, I have constituents who are worried about whether an elderly woman can be guaranteed a female carer to help with washing and dressing. That is a justified fear, given that NHS Lothian said that it was unable to guarantee female-only care because of the privacy protections in section 22 of the GRA.
Organisations that gave evidence to the committee, such as Engender, Stonewall and the Equality Network, as well as the cabinet secretary, all argue as though the issue is whether a GRC is necessary in order to, or gives a right to, gain access to single-sex services or spaces, but the real concern here is that a change of sex under the Equality Act 2010 makes it easier for a growing number of GRC holders to challenge exclusion from such spaces. Therefore, surely the Government can understand why there are valid concerns that service providers are less likely to challenge anyone with a GRC who asserts a right to be in a female-only space.
The bill departs significantly from the Gender Recognition Act 2004. The Scottish Government has lost sight of that legislation’s original intentions and has produced what I consider to be a piece of legislation that begs for unintended consequences and legal challenge. In the light of the evidence that has been presented in today’s debate, the evidence that I have heard in committee and the concerns of my constituents, I will vote against the bill at stage 1, and I urge members across the chamber to do the same.
I invite Shona Robison to wind up the debate on behalf of the Scottish Government.16:53
We have continued to have—by and large—a respectful debate, in which we have heard a range of views on the bill from members across the chamber. I again put on record my thanks to the Equalities, Human Rights and Civil Justice Committee and its convener and clerks, who have done a huge amount of work in getting the bill to this stage.
I will refer to as many members’ contributions as I can, but, if I am not able to cover them all, I will try to follow up in writing, because some important points have been made that I want to cover.
First, I turn to points that were made by Pam Duncan-Glancy and Jackie Baillie. Let me be clear: I have had an open-door policy. I have met Pam Duncan-Glancy on a number of occasions and have tried to build consensus where I can. I give a categorical assurance that, as we move to stage 2, I will absolutely work on constructive amendments with members from across the chamber. I will give them all a fair hearing and will seek to build consensus where possible. I ask that amendments be constructive and in line with the principles of the bill. They must, of course, be legally competent, but I think that we can get there.
I will refer to two particular areas. The first is the Equality Act 2010. I have said since the beginning of this process that the bill has no impact on the Equality Act 2010. It cannot have, because that act deals with a reserved matter. Perception is also important, and I recognise the concerns about that. I have said that the single-sex exemptions under the Equality Act 2010 will remain, regardless of this bill. However, I understand that putting that into the bill will help to leave that in no doubt whatsoever and will recognise the importance of that, so I am willing to work with Pam Duncan-Glancy and others to achieve that.
What the cabinet secretary said is constructive, because Scottish Labour has asked for that to be in the bill. I am pleased about that.
Does the cabinet secretary also agree that it is important to have clarity about the Government’s position and the law? Some people have asked why the Scottish Government will argue in court that a GRC changes sex under the Equality Act 2010 for the purpose of appointments to public boards. That seems to be at odds with what the cabinet secretary has said to Parliament. There seems to be a contradiction. It would be very helpful if the cabinet secretary could clear that up.
I am not going to comment on a live court case, and Ms McNeill would not expect me to do so. The Scottish Government completely accepts and agrees with the Equality and Human Rights Commission. Its definitions of the protected characteristics under the Equality Act 2010 and of the effect of a GRC have not changed since the 2004 act, and none of that will be changed by this bill. That all remains the same. I give that guarantee again.
The other area that I will mention is the application process, which was another point raised by Labour members. I am happy to work with them and with others from across the chamber to look at how we can address some of the concerns. Michael Marra made some useful suggestions about what that might look like. I am happy to work with members from across the chamber to look at that.
The issue of access to healthcare and support was raised. As I said in my response to the committee’s report, the Scottish Government absolutely recognises the need to provide the best possible care for young people who are questioning their gender identity or experiencing gender dysphoria. We, and NHS Scotland, will closely monitor the on-going findings of the Cass review, alongside wider national and international evidence, as those become available and within the context of NHS Scotland services.
However, we must be clear that clinical decision making and clinical services have no relation to this bill, which is about changing the process by which someone can obtain a gender recognition certificate. Such a certificate is not required to access clinical services. We absolutely accept the point that those services must improve, and the Cabinet Secretary for Health and Social Care has already made a commitment to work with the committee on improvements that are already in the pipeline and that will ensure that waiting times are reduced.
In the Scottish Government’s response to the committee, the Cabinet Secretary for Health and Social Care did not commit to what the committee asked for, which was a review of gender dysphoria services for children and young people. At the moment, the waiting time is very long. I recognise that that is not part of the bill, cabinet secretary, but it was an important part of the evidence that we took that the waiting times should be reduced and services should be improved.
The member will be aware that the framework for service improvement was issued in December 2021, and it includes the commissioning of a national clinical service for young people. Work is therefore already going on, which will be informed by all the best-practice clinical guidelines, robust evidence on treatments and new models of delivery as such information becomes available. The service will be inclusive of relevant developments in England and the rest of the UK, as well as internationally. The health secretary is taking that work forward, so I do not think that there is any disagreement here.
I want to reference a few other comments that members made. Alex Cole-Hamilton made a good point about the difficult and lengthy GRC process and about why it puts so many people off. That is borne out by the evidence—of the estimated 500,000 trans people in the UK, only around 6,000 currently have a GRC, which says that there is a huge problem with the process.
As I have said previously, out of all those people, the people who will take advantage of the new, simplified process for obtaining a GRC will be those who have already been living in their acquired gender, many of them for decades. The international evidence shows that the people who take advantage of the changed processes are those who have already been living in their acquired gender.
Jamie Greene made a very powerful contribution. He said that we are not talking about a mental illness here, and he talked about some of the concerns. He suggested that the same arguments are being used as have been used against other minorities over the decades, and he is absolutely right.
Jamie Greene also talked about the things that he does not know. Let me speak as a mum of a teenage daughter. When she goes out at the weekend, my fear is about whether she will come home okay—I secretly wait up to make sure that she comes through the door—because of my concern about predatory and abusive men; it is not about the trans people who are out on a Friday and Saturday night, going about their business. [Applause.]
For the benefit of those who did not sit in on the debate, I observe that that is exactly the point that I made—the issue is not about trans people, it is about predatory men.
Although I am pleased to support the cabinet secretary and the Government by lending my support in today’s vote, that is not without compromise. It is very clear that a bigger discourse still needs to be had, among the wider public and even on the Government’s own benches, as there are still people who feel that their voices have not been fully heard. I would like a commitment from the cabinet secretary that she will not use the governing parties’ parliamentary majority but will constructively engage with every single member to ensure that what we pass at stage 3 is worthy of the Parliament.
Please conclude, cabinet secretary.
I agree with Jamie Greene: I want to build maximum consensus. However, that consensus has to be around the principle of the bill—that the current process for transgender people is not as it should be, because it puts people off obtaining a GRC. We have heard that point made across the chamber. I want to build the consensus that we can build, in order to make the bill the best that we can make it and to have the best law that we can have, as Jackie Baillie said yesterday, and I will do so.
I have had an open-door policy, and I am happy to work with Jamie Greene, Pam Duncan-Glancy, Jackie Baillie and others as far as we can. At the end of this debate, I give that commitment.
That concludes the debate on the Gender Recognition Reform (Scotland) Bill at stage 1.