Gender Recognition Reform (Scotland) Bill: Cabinet Secretary's statement

Presiding Officer, I have introduced the Gender Recognition Reform (Scotland) Bill, which proposes reforms to simplify the process for trans men and women to obtain a Gender Recognition Certificate. It is now for this Parliament to consider this Bill.

Trans people in Scotland risk inequality, harassment, and abuse simply for living their lives. They are amongst the most marginalised in our society. Recent Police Scotland statistics show increases in hate crimes with a transgender aggravator.

As a society, and a Parliament, we have a responsibility to protect and support minority groups at risk of harm. Under the Equality Act we have a legal duty to address discrimination against those with the protected characteristic of gender reassignment. And Scotland must have a system of gender recognition in order to comply with international human rights law.

The current system has been in place for the past 18 years. There is evidence from extensive consultation – two of the largest ever undertaken by the Scottish Government and also a UK Government consultation – that applicants find the current system intrusive and invasive, overly complex and demeaning. Many trans people do not apply because of these barriers.

And that’s why we proposed to reform the process to make it simpler, more streamlined, more compassionate, and less medicalised.

Our proposals for change and progress have caused discussion and debate. We know there are people who have campaigned for such changes for years. We know there are others who have concerns. This afternoon I will seek to allay some of those concerns by explaining what the Bill does, and importantly what it doesn’t do.

It does not introduce new rights or remove rights. It does not change public policy or prevent single-sex services being offered where appropriate. It does not change rules or conventions in place, and in place for years under the current system, for example access to toilets and changing rooms.

Presiding Officer, and to anyone listening, I want to be clear: I will listen to the views of everyone; parliamentarians in this chamber, and those outwith, in a respectful manner throughout the passage of this Bill. And I urge everyone to do the same, as you did at the outset.

When it comes to gender recognition, and also wider issues concerning trans people, from healthcare to access to services, discussion has often become heated.

I have often found the tone of debate on social media to be angry, unpleasant and abusive; both of trans people and of those who oppose gender recognition reform. I am concerned about the impact all of this has, but particularly how it further stigmatises and marginalises trans people in Scotland.

This isn’t just an unacceptable way to behave towards each other; it’s also unhelpful in getting a point of view across. We can disagree on issues without being offensive or abusive.

My meetings with stakeholders have shown that it’s possible to have constructive, respectful conversations about this Bill.

And I ask that this Parliament leads by example, and that we work together to set a tone of respectful discussion, with a focus on the specific reforms in this Bill, just as we’ve done in the past, for example with same sex marriage, which faced significant opposition at the time.

Trans people have been able to apply for legal gender recognition through a Gender Recognition Certificate, or a GRC, since 2004. Obtaining a GRC means that a trans person is legally recognised in their acquired gender, and can obtain a new birth certificate showing that gender.

Not all trans people have a Gender Recognition Certificate and no-one is required to have one. The UK Government estimates there are up to 500,000 trans people in the UK, of whom only around 6,000 have a GRC.

Those without a GRC will often have made other changes, including to passports, driving licenses and other official documentation. The Bill’s reforms will move the law closer to how people are already living their lives.

For clarity, the GRC provides the legal recognition of changing a birth certificate, and I will say again has been in place and a right for 18 years. And it’s this mechanism for obtaining this that we are changing, nothing else. We are not introducing new rights for trans people and importantly we are not removing or changing any for women and girls.

Central to the proposed reforms is removing the medical element of the process. We propose that GRCs be issued on the basis of statutory declaration made by the applicant, rather than on a judgement by a tribunal based on a diagnosis of gender dysphoria.

The World Health Organization’s revised International Classification of Diseases, approved in 2019, redefined gender identity related health, removing it from a list of “mental and behavioural disorders”. They took this step to reflect evidence that trans-related identities are not conditions of mental ill health, and classifying them as such can cause distress.

Moving to a system based on personal declaration rather than medical diagnosis will bring Scotland into line with well‑established systems in Norway, Denmark and Ireland, and recent reforms in Switzerland and New Zealand. We are aware of at least ten countries that have introduced similar processes.

The process will remain serious and substantial. Making a false application will be an offence with penalties of up to 2 years imprisonment or an unlimited fine.

The meetings I have had over recent months, while finalising the Bill for introduction, have allowed me to hear the range of views directly from stakeholders. I have heard from those who have concerns. And I have heard about the experiences of trans people who have been through the current process.

This follows two of the largest consultations ever undertaken by the Scottish Government.

The first in November 2017 sought views on the general principles of reform. It received over 15,500 responses, with 60% agreeing that applicants for legal gender recognition should no longer need to produce medical evidence.

In December 2019, a second consultation on a draft Bill received over 17,000 responses. While this was qualitative, analysis of group responses showed a majority supported reform.

We have published independent analysis of both consultations, providing a valuable summary of the range of views.

Whilst I know through meetings I have had, that for some, we are not going far enough, and that others would like us not to have a bill at all; the evidence overall from the consultations strengthens the argument for reform and shows that there is significant support for reforming the process of gender recognition.

Our consultations provide clear evidence of the negative impact the current system can have on trans people. So did the UK Government consultation in 2018 and its LGBT survey in 2017.

Many respondents described the process as outmoded and discriminatory, overly complicated, humiliating and invasive, and despite living in their gender for many years, many trans people had not applied for a certificate for those reasons.

I’ve heard about individuals’ experiences of exclusion. Of a trans woman who had transitioned nearly 30 years previously and therefore found the evidence requirements impossible. Of a trans man whose gender specialist had retired, and NHS records had been lost, and now can’t obtain a GRC despite having changed their passport and all other ID.

The analysis reports also sets out the concerns of those who do not want reform. I know that some people are concerned about the potential impact on women and girls. I have met with a number of people and groups, and I recognise that they feel deeply affected.

I am also well aware of real and legitimate concerns about the violence, abuse and harassment women and girls face in our society. But trans people are not responsible for that abuse, indeed they often face it themselves. We still live in a society where, unfortunately, it’s not hard to find sexist or misogynistic beliefs. Where women and girls face violence at the hands of men. And that’s abhorrent and this government is tackling that head on, providing support for services and focusing on prevention.

But we must be clear: all of the evidence tells us that the cause of violence against women and girls is predatory and abusive men; not trans people. And importantly, we must not conflate the two. There is no evidence that predatory and abusive men have ever had to pretend to be anything else to carry out abusive and predatory behaviour.

Presiding Officer, we are committed to advancing equality for women and protecting women’s rights. That commitment is not affected by our support for trans rights. We strongly support the rights and protections that women have under the 2010 Equality Act including single-sex exceptions.

This part of the Act means that there is an exception applied to the protected characteristic of gender reassignment; in practice this means trans people can be excluded from single-sex services in some circumstances, where that is proportionate and justifiable. The Act’s Explanatory Notes gives an example of a group counselling session for female victims of sexual assault. This Bill does not amend the Equality Act. Nothing in this Bill will erode or undermine women’s rights.

Some of the concerns I have heard relate to issues under the current system, which it’s argued will be compounded by our reforms. For example, concerns about policies implemented by service providers for changing rooms and toilets.

Other than for communal residential accommodation, the Equality Act does not apply exceptions specifically to toilets and changing rooms. Trans people can and do use these now, whether they have a GRC or not, and they have been using them for many years.

The Bill’s proposals have no direct effect on single-sex spaces, but I’ve heard arguments that suggest an indirect effect on two grounds: that there will be a significant increase in people obtaining gender recognition, or that the bill will drive a wider social shift.

Based on international comparison, particularly with Ireland which introduced a similar process seven years ago, we estimate the number of applications might rise from around 30 to between 250 and 300 per year. A small number in the context of the Scottish population.

I have considered this and agree that we should monitor the impact of the changes, as with all legislation. I have therefore introduced new provision requiring annual reporting, including on the numbers applying for and obtaining a GRC, which I hope will provide some assurance.

On the second argument, about a wider societal shift, it is true that society moves on and attitudes change. We have seen that already with same sex marriage, civil partnerships, and with the Pardons Act. There is greater equality and acceptance in how we live our lives, who we love, and how we solemnise our relationships. And surely that’s a good thing.

The acceptance and better understanding of trans people is another positive shift in society. The recent BBC poll shows that the general public is more accepting on trans inclusion than looking at social media would suggest, particularly among young people and women. The trans community, like everyone else, have a right to live their lives without fear of prejudice and abuse.

Presiding Officer, the Bill proposes that applicants must have lived in their acquired gender, but the minimum period for this should be reduced from 2 years to 3 months, with an additional 3 month reflection period.

Some have argued for removing the requirement altogether, others to keep it at two years. Our view is that this approach strikes the right balance and provides valuable assurance.

We consulted on whether to lower the current minimum age for applicants of 18 to 16. We have carefully considered this, examining different views and evidence, and it is a question that is finely balanced.

We have examined comparable systems in other countries where a range of approaches are taken including parental consent, a role for the courts, or requiring evidence. And we’ve considered these within a Scottish context.

Those who have raised concerns say that under-18s are too young to make such an important decision. However, 16-year-olds can leave home, get a full time job, change their name, consent to medical treatment, marry and vote.

Earlier this week the Cabinet met with the Scottish Youth Parliament, and members spoke eloquently about how young trans people feel excluded by a system that denies them access to legal recognition, particularly for example in the case of someone wanting to make the legal change before moving into further or higher education or employment.

We also recognise that these are important decisions, and it’s vital that everyone applying to the process, especially young people, fully understand and carefully consider before doing so.

We have concluded that the minimum age should be reduced to 16, with support and guidance provided to young people through schools, third sector bodies and National Records of Scotland.

Under the oversight of the Registrar General, National Records of Scotland will routinely give additional and careful consideration of applications from 16 and 17 year-olds. They will provide support on the process, and where necessary will undertake sensitive investigation, and this could include face-to-face conversations with applicants.

Every 16 or 17 year old who applies will be offered – and encouraged to take up – the option of a conversation with NRS to talk through the process.

One other change since publication of the draft Bill relates to the power to charge an application fee. There should be no financial barrier to achieving legal gender recognition. The draft Bill included a power for the Registrar General to set a fee for applications. That has been removed. It is our view that no fee should be charged, and removing the power gives a clear commitment to this.

Finally, Presiding Officer, four of the five parties in this Chamber made clear their support for reform in their recent manifestos.

However, I recognise that for individuals, just as within the public, there may be a range of views.

I understand the views and concerns of those who oppose the reforms, and just because they disagree with the proposals, people should not be automatically labelled as transphobic. If everyone is respectful, we should all be able to discuss the proposals and our views in a civilised manner.

However it is clear that transphobia exists and as elected representatives we must ensure that transphobic discourse does not seize onto the concerns that people have about this Bill.

It’s in this context that it’s so important that we discuss our differences of opinion and consider the evidence in a way that is measured and respectful. And I will maintain an open-door policy for MSPs who want to discuss any aspect of the Bill.

Presiding Officer, following some of the most extensive consultation ever undertaken in Scotland, the Gender Recognition Reform (Scotland) Bill is now introduced and sets out the Scottish Government’s proposal for a balanced and proportionate way of improving the current system. It is now for this Parliament to consider.