Committee
Equal Opportunities Committee 16 January 2014
16 Jan 2014 · S4 · Equal Opportunities Committee
Item of business
Marriage and Civil Partnership (Scotland) Bill: Stage 2
Amendments 68, 70 and 72 implement one of the recommendations that the committee made in its stage 1 report. It recommended that“the requirement for spousal consent for gender recognition is unnecessary and should be removed.”It also noted that“the non-transitioning spouse’s personal choice is sufficiently protected by the automatic grounds for divorce triggered by his or her partner’s seeking gender recognition.”Amendment 68 would enable a trans person who married in Scotland to obtain legal gender recognition without needing first to get written consent from their spouse. It would also ensure that the spouse had the right, at any time, to seek a non-contestable divorce on the grounds of the trans person’s gender recognition.The right to legal gender recognition is an established human right that it should not be possible for another person to block. The rights of the trans person and their spouse must be balanced in the bill. As the bill stands, I do not believe that the right balance has been struck. Removing the requirement for written spousal consent for gender recognition will correct the balance and will ensure that trans people have the personal autonomy to which they are entitled. There are many circumstances in which a married person may act in a way that has an effect on their spouse but in which there is no legal requirement to first obtain the spouse’s written consent. The trans person’s decision to start living as the other gender and, later, their decision to undergo gender reassignment surgery have a huge impact on their spouse, but there is no legal requirement for them to obtain spousal consent before taking either of those steps.In contrast, the later issuing of a gender recognition certificate is the final administrative step of recognising the transition that has already taken place. It is an extremely important step for the trans person’s practical rights, because it means that their legal gender comes into line with their lived gender, but the practical effect on their spouse is minimal compared with that of the earlier steps of transition. It is therefore disproportionate to require the spouse’s written consent to be obtained.As transgender equality develops around the world, an increasing number of European countries are treating legal gender recognition as an entirely personal administrative process. Of the nine European countries outwith the United Kingdom that have same-sex marriage, not one has a spousal consent requirement for gender recognition; and none of those countries has been subject to a human rights challenge because they do not have a spousal consent requirement. I believe that that illustrates that my amendments comply with the European convention on human rights. In fact, it is more likely that the bill could be challenged for infringing the rights of the trans spouse if the spousal consent requirement remains in the bill. It would be disappointing if we missed this opportunity to develop our laws in line with best practice.10:00 Amendment 68 would insert new section 4E into the Gender Recognition Act 2004 and provide that a trans person in a Scottish marriage who does not have written spousal consent for their gender recognition and who therefore obtains only an interim gender recognition certificate from the UK gender recognition panel may then apply to the sheriff court to convert the certificate to a full certificate, which would bring their gender recognition into effect. The application would have to be made within six months of the issue of the interim certificate. The route of an application to the sheriff court is proposed because the gender recognition panel operates on a UK-wide basis and it would be difficult for the panel to operate different rules for Scotland. Amendment 68 proposes a Scottish solution to the problem, and it would remove the need for spousal consent only for Scotland.Amendment 68 would not require the sheriff to hold a hearing; in fact, that would be a very bad thing because it could turn the process into an expensive, slow and adversarial one. The role of the sheriff would be purely administrative in converting the interim certificate to a full one. The sheriff is well placed to do that because converting an interim certificate to a full one is exactly what the sheriff does at present in cases where a person with an interim certificate obtains a divorce.Amendment 68 would also require that the sheriff notify the trans person’s spouse that the application for the full certificate has been made and that it has been granted. That would allow the spouse to apply for a non-contestable divorce if they wished to end the marriage. The amendment specifies that their right to do that would continue indefinitely, so they could take as long as they liked to decide.Amendment 70 would provide that, when gender recognition is granted under the provisions of new section 4E of the 2004 act, a revised marriage certificate that showed the marriage as a same-sex marriage would be issued only with the spouse’s agreement. That would give the spouse the space to decide whether to seek to end the marriage without updated documentation related to the marriage being in circulation first.Amendment 72 would ensure that the continuity of the marriage would not be affected by the issue of the full gender recognition certificate. That would mean that the spouse’s financial, parental and other rights associated with the marriage would not be affected in any way by the gender recognition.I believe that these amendments would correct an imbalance in the bill and help to ensure that the bill delivers equality for transgender people and others. I ask the committee to support my amendments.I move amendment 68.
In the same item of business
The Convener
Lab
The second item on the agenda is stage 2 of the Marriage and Civil Partnership (Scotland) Bill. This is our second meeting at stage 2. I welcome Alex Neil, t...
The Convener
Lab
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The Cabinet Secretary for Health and Wellbeing (Alex Neil)
SNP
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Alex Johnstone
Con
I note the cabinet secretary’s comments with interest, but believe that there are still issues to be discussed. I therefore reserve my position in order perh...
The Convener
Lab
The first group is on review of effects of introduction of same-sex marriage. Amendment 48, in the name of John Mason, is the only amendment in the group.
John Mason
SNP
As is clear from the heading of the amendment—“Review of same-sex marriage”—it calls for a review, after five years, to see whether things have gone as expec...
Alex Neil
SNP
I do not agree with amendment 48. The Government supports post-legislative scrutiny of legislation. We have, for example, recently responded to an inquiry by...
John Mason
SNP
I am a little disappointed that there is no sign of movement from the cabinet secretary. He says that something that is not a sunset clause“could be perceive...
The Convener
Lab
The question is, that amendment 48 be agreed to. Are we agreed?Members: No.
The Convener
Lab
There will be a division.ForJohnstone, Alex (North East Scotland) (Con)Mason, John (Glasgow Shettleston) (SNP)AgainstAllard, Christian (North East Scotland) ...
The Convener
Lab
The result of the division is: For 2, Against 4, Abstentions 0.Amendment 48 disagreed to.Sections 22 to 27 agreed to.Schedule 2—Change of gender of married p...
The Convener
Lab
The next group is on applications for gender recognition certificates by long-term transitioned persons. Amendment 50, in the name of the cabinet secretary, ...
Alex Neil
SNP
Amendments 50 and 74 to 76 relate to persons who are long-term transitioned to an acquired gender. Persons who are acquiring a new gender can apply to the ge...
The Convener
Lab
The next group is on further minor amendments and corrections. Amendment 51, in the name of the cabinet secretary, is grouped with amendments 52, 54 to 56 an...
Alex Neil
SNP
Amendments 51, 52, 54 to 56 and 67 relate to the change of gender of married persons or civil partners. They are, for the most part, technical amendments tha...
The Convener
Lab
The next group is on meaning of “protected Scottish marriage”: consular marriages. Amendment 53, in the name of the cabinet secretary, is the only amendment ...
Alex Neil
SNP
Schedule 2 to the bill amends the Gender Recognition Act 2004 to enable marriages that are solemnised in Scotland to continue when one or both parties change...
The Convener
Lab
The next group is on successful applications: when full gender recognition certificate to be issued and when interim gender recognition certificate to be iss...
Alex Neil
SNP
Amendments 57 to 66, 69, 71 and 73 are designed to ensure that the Marriage (Same Sex Couples) Act 2013, which was passed at Westminster, and this bill work ...
The Convener
Lab
The next group is on issue of full gender recognition certificate by sheriff where spouse has not declared consent to marriage continuing. Amendment 68, in t...
Linda Fabiani (East Kilbride) (SNP)
SNP
Amendments 68, 70 and 72 implement one of the recommendations that the committee made in its stage 1 report. It recommended that“the requirement for spousal ...
Marco Biagi
SNP
I speak in support of this group of amendments, which as Linda Fabiani has pointed out would implement a recommendation that the committee came to unanimousl...
John Finnie
Ind
I share the views of the two previous speakers, and I will support Linda Fabiani’s proposal, which was delivered in a very measured way and which shows that ...
Alex Johnstone
Con
I agree in principle with the amendments, and I wish to support that principle. However, I seek some reassurances in a key area. My concern is that the remov...
Alex Neil
SNP
I agree that Linda Fabiani introduced her amendments in a measured and comprehensive way, but I have to be honest and say that they do not reflect the Govern...
Linda Fabiani
SNP
A number of interesting comments have been made. I say to Alex Johnstone that, as there would be a non-contestable right of divorce, I do not think that the ...
Alex Neil
SNP
If they are agreed to.
Linda Fabiani
SNP
Of course, cabinet secretary.If the amendments are agreed to, I would be happy for the Scottish Government to tidy up the wording at stage 3. I therefore pre...
The Convener
Lab
The next group is on appeals against issue of gender recognition certificate. Amendment 29, in the name of the cabinet secretary, is the only amendment in th...
Alex Neil
SNP
I have only very short introductory remarks to make on the amendment.The bill provides that, when an applicant to the gender recognition panel secures a gend...