Chamber and committees

The issue that I have with this section, which I raised at stage 2, is that it seems to me to be virtually impossible to prove fraud if, in order to get a gender recognition certificate, a person does not have to present any evidence. If no evidence is needed to get a certificate, how can a fraud be committed in order to get one? What would be the fraud? If the only thing that someone has to say is, “I am a man” or “I am a woman,” and they present no other evidence, what fraud can there be?

I thank Jamie Greene for taking an intervention. I appreciate that he is not speaking to his own amendment, but I am sure that Christine Grahame will be grateful that he is speaking to hers.

It comes down to language again. Amendment 99, which relates to guidance that a young applicant must seek, says:

“The applicant must tell the Registrar General what role the individual mentioned in subsection (2) has, or how the individual knows the applicant.”

The bill already includes the provision that such advice must be sought. I appreciate that Jamie Greene did not lodge the amendment, but can he give us his view on what difference the amendment would make to what is already in the bill?

That is exactly what I was about to go on to say. I said that I would quote the cabinet secretary extensively, and that is exactly what I am going to do. She went on to say:

“In that respect, the bill does not change the position in the 2004 act, in which examples of appropriate evidence of living in the acquired gender include updating official documents such as a driving licence, passport, utility bill or bank account. Numerous other examples are provided within the guidance on the 2004 act, which has now been in place for 18 years.”

I asked the cabinet secretary to expand on that, and she said:

“The guidance to the 2004 act uses examples that include consistently using titles and pronouns in line with the acquired gender, updating gender-marker official documents such as a driving licence or passport, updating utility bills or bank accounts, describing themselves and being described by others in written or other communication in line with their acquired gender and using a name that is associated with the acquired gender.

Those are examples of what could constitute living in the acquired gender.”—[Official Report, Equalities, Human Rights and Civil Justice Committee, 15 November 2022; c 54-5.]

Although that was not exactly what I was looking for, I thought that we might have something—

Well, maybe not. However, would someone who is equally upstanding but who keeps themselves to themselves and is therefore not known in the community not qualify?

I hoped to hear from Mr Marra so that he could persuade me.

Will the member take an intervention?

In relation to amendment 98, I am interested to know what Jamie Greene means by the phrase

“be able to provide reasonable evidence”.

There is a danger in any legislation when we insert such phrases, which are potentially quite woolly legally. I am not sure what that means, so it would be useful if the member could tell us.

Absolutely—hence the amendments.

I thought that the cabinet secretary and I might have something to work with on that basis, and be able to work together. Ms Robison just looked very uncomfortable at the idea of working with me, but there we are.

Eagle-eyed members will notice that amendment 3, which is on evidence of living in the acquired gender, is a virtual carbon copy of what Ms Robison quoted to me at stage 2, which I just read out. The amendment is a list of the evidence that she said is already required, but I would also give ministers the ability to change the list through regulations. What could be better for them than their own list that they can change? There is simply no reason for the cabinet secretary to oppose putting that in the bill. Clarity is essential in the law, and we should not require people to go hunting through multiple pieces of legislation to get to the legal position.

Should amendment 3 pass, it will apply to 16 and 17-year-olds. I am against the bill applying to 16 and 17-year-olds, but I accept that Parliament has voted to retain that aspect of the bill. Therefore, I am accepting the reality of the situation, in the amendment.

Should Parliament reject amendment 3, I offer it amendment 2, which takes a much more light-touch approach. It says that the only evidence that would be required to be offered to the registrar general in relation to living in the acquired gender would be pieces of evidence that contain just the person’s name, a title and a gender marker. If Ms Robison does not like amendment 3, amendment 2 is the one for her.

The other amendments in the group are technical and consequential.

I turn to the amendments from Paul O’Kane, Michael Marra and the cabinet secretary.

Mr O’Kane has clearly been inspired by my approach—and who can blame him? Other than his specific reference in amendment 47A to being 16 or 17, I can find no reason to object to any of his amendments. Amendment 47A is an amendment to the cabinet secretary’s amendment 47, which asks for two pieces of proof of identity. That is not quite the same as my amendments that seek evidence of living in the acquired gender, but it almost is.

I have a great deal of time for Mr Marra, but his amendment 106 bothers me a bit because of its vagueness. It deals with the business of someone countersigning an application, and it says that such a person must have known the applicant for two years, which is fair enough. They must also be someone “of good standing”, or they must work in, or be retired from, a recognised profession. The latter category is left to be spelled out in regulations. Mr Marra is saying that, if a person has known someone for two years but that person works in a certain job, they will not be suitable to countersign. That seems to be a little snobbish, and I am a bit uncomfortable with it. I am not sure what is meant by someone

“of good standing in the community”

either. I hope that I would qualify—

Members: No.

That is really useful, and I shall reflect on it and on what Mr Marra says when he speaks.

Before I sit down, I thank the various organisations that have contacted me and others to say that they oppose my amendments. I have read their submissions and I understand their arguments, but I respectfully disagree with them. That is largely down to the helpful steer that was given at stage 2 by the cabinet secretary, whom I warmly thank.

Will the cabinet secretary take an intervention?