Hansard

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.