My thanks to all constituents who contacted me in relation to the Gender Reform Act which completed its passage on 22 December 2022. I have been contacted by constituents some in favour of the reforms and others raising concerns.
Following a number of successful amendments at Stage 3, together with amendments taken at Stage 2, I believe the Parliament was able to strike a careful balance to better support those in our trans community whilst building in proportionate safeguards. The Bill was passed by 86 votes to 39.
I supported the amended legislation.
The Bill (as passed) improves the process by which trans people can apply for a Gender Recognition Certificate to ensure their birth certificate aligns with their lived gender. It does not confer any new rights. What it does do however is allow often excluded individuals to marry, live and indeed be buried in their acquired gender without being outed and stigmatised, simply by having their birth certificate reflect their acquired gender.
I acknowledge the concerns of some including constituents who have contacted me. Some have asked me not to support the legislation and many others have urged me to support it. I therefore want to outline the changes which have now been made and some of the amendments agreed to during the passage of the Act.
The process to secure a gender recognition certificate has been amended in a few ways. It has removed the requirement to have a gender dysphoria diagnosis, reduced the time period from two years and made the new process available to 16 and 17 year olds.
Those aged 18 and over will now be able to make an application to the Registrar General if they have lived in their acquired gender for three months. Following a solemn declaration there will be another three month period of reflection. For those who are 16 and 17, they must have lived in their acquired gender for 6 months before any application and a subsequent three month period of reflection. 16 and 17 year olds will also be offered advice by the National Registrars of Scotland and there must have been a discussion between the applicant and a relevant person ahead of the application.
Trans people are some of the most marginalised people in society. The Crown Office revealed this June that hate crimes against Transgender people rose 87% in the last year, the highest number of such charges reported since the legislation introducing this aggravation came into force in 2010.
I appreciate that there has been robust debate around what the impact is on women.
It is, however, clear that nothing in the legislation impacts on protections that women and girls currently have under the 2010 Equality Act. This Bill makes no changes to that Act. A Stage 2 amendment made this crystal clear when the Equalities Committee agreed an amendment to the Bill (from Pam Duncan-Glancy) to write into the legislation that for the avoidance of doubt, nothing in the Bill modifies the Equality Act.
Engender, JustRight Scotland, Scottish Women’s Rights Centre, Scottish Women’s Aid, Amnesty International Scotland, and Rape Crisis Scotland all co-signed a letter restating their support for Scotland’s Gender Recognition Reform; they said: “We see the paths to equality and the realisation of human rights for women and trans people as being deeply interconnected and dependant on shared efforts to dismantle systems of discrimination.”
It is also worth noting that there is currently no requirement to provide a Gender Recognition Certificate when seeking to use single-sex spaces and the legislation passed does not change any current provisions. Irrespective of whether someone holds a Gender Recognition Certificate, services offering single-sex provision can clearly exclude trans women if they have a proportionate and legitimate aim. Exceptions in the Equality Act 2010 enable single-sex services to exclude trans people or treat them less favourably where it is a proportionate means of achieving a legitimate aim. Those exceptions still apply and can do whether the person has a Gender Recognition Certificate or not.
Various other additional protections were put in place at Stage 3. For instance the Chief Constable can use provisions to ensure convicted sex offenders and those on trial for sex offences can be prevented from having a Gender Recognition Certificate. These relate to two sets of amendments, Gillian Martin MSP (jointly with Jamie Greene MSP) and the Cabinet Secretary Shona Robison MSP.
Together these provide a process for Police Scotland (the Chief Constable) to apply for a Sexual Harm Prevention Order, a Sexual Offences Prevention Order or a Sexual Risk Order, inform the Registrar General and in doing so prevent the issuing of a Gender Recognition Certificate. Other amendments in the same area which were rejected by Parliament as they could have placed at risk the overall legality of the entire legislation and were at risk of breaching the European Convention of Human Rights. The amendments passed secures the safeguards sought.
Amendments in other areas were brought forward and accepted to further strengthen the Bill. This includes amendments passed on a review of the Act following its implementation and associated post-legislative scrutiny. The review will be extensive and include the impact on 16 and 17 year olds, on impact on prisons, on healthcare and in various other ways. There was also the introduction of a new statutory aggravation offence connected to a fraudulently obtained GRC which builds on existing deterrents against false applications.
Notwithstanding the safeguards it should be noted that Ian Duddy of the Scottish Human Rights Commission said, “Having analysed concerns through a human rights lens we remain strongly of the view that the changes that are set out in the Bill will bring Scotland closer to satisfying international legal standards and will not jeopardise the rights of others.”
The Independent Expert on Protection Against Violence and Discrimination based on Sexual Orientation and Gender Identity Victor Madrigal-Borloz also stated “...there is no credible evidence supporting the submission that requirements currently in place in Scotland for legal gender recognition are effective or efficacious safeguards to prevent sexual and gender-based violence, or that these requirements are even remotely connected to it; there is also no credible evidence supporting the idea that maintaining them in whole or part or devising other gatekeeping mechanisms will serve that preventive purpose either.”
The Bill brings Scotland in line with international human rights precedent established by a number of other countries, including the Republic of Ireland, Norway, Malta, Denmark and Belgium. More recently, New Zealand and Switzerland have also passed similar reforms. Ireland has a system based around statutory declarations which came into force in 2015. Such rights now extend to populations in countries now extending to 350 million people and Spain has just passed stage one of a similar process.
The legislation passed has been six years in the making and was supported by most MSPs across the Parliament, across all political parties.
Bob Doris MSP
Further details on the Bill are available at
https://www.parliament.scot/bills-and-laws/bills/gender-recognition-reform-scotland-bill
