Hansard

In my statement, I will set out the background to the Gender Recognition Act 2004 and the case for its reform. I will consider the relationship between gender recognition legislation and the Equality Act 2010, and I will outline the next steps that the Government intends to take to deliver dignity for trans men and women, and to continue to address concerns that have been raised about, for example, access to women-only spaces.

First, I will give the background to the 2004 act and the case for reform. In 2002, the European Court of Human Rights found that the United Kingdom had breached the European convention on human rights in respect of the lack of legal recognition being afforded to trans people. The UK Parliament therefore passed the 2004 act, which this Parliament agreed to through a Sewel motion. As a result, trans men and women were, for the first time, given the right to seek legal recognition of their lived gender and, if they were born in the UK, to access an updated birth certificate without undergoing gender reassignment surgery or medical treatment. The 2004 act was, at the time, groundbreaking.

However, over time, there has been growing recognition that the process that is enshrined in the 2004 act, which requires applications to be considered by a gender recognition panel, is overly complex and medicalised. For the people who use it, the process can be deeply traumatic and stressful.

In recommending reform of the 2004 act in January 2016, the Women and Equalities Committee of the House of Commons stated that the current process

“runs contrary to the dignity and personal autonomy of applicants.”

Because of that, my party made a commitment in our 2016 manifesto to

“review and reform gender recognition law”

and to bring it into

“line with international best practice”.

Every other political party that is represented in this Parliament made a similar manifesto commitment. The UK Government has also recognised the complexities of the system, so in 2018 it consulted on reforming the law in England and Wales.

Two points are worth stressing. First, gender recognition is not new; it has been in place since 2005. The issue that we are debating is reform of the process by which the right to gender recognition is exercised—a matter that I will return to shortly.

Secondly, in reforming gender recognition law, Scotland will not in any sense be leading the way or taking unprecedented action: on the contrary, the Republic of Ireland, Denmark, Belgium and Norway are among the countries that have already adopted new gender recognition processes, which are similar to those on which we have consulted.

I turn now to the relationship between gender recognition law and the Equality Act 2010. The Equality Act 2010, which is reserved legislation, provides protections from discrimination, victimisation and harassment on the basis of protected characteristics including sex and gender reassignment. Across all parts of our society those rights have been hard won and must be protected.

One area of concern that has been raised about gender recognition reform—during and since the consultation—is the impact that it will have on provision and protection of single-sex or women-only spaces and services. It is vital to be clear on that important point. The Equality Act 2010 already allows trans people to be excluded, in some circumstances, from single-sex services, where that is proportionate and justifiable, including where a trans person has legal recognition. The Government’s proposals to reform the Gender Recognition Act 2004 will not affect that position.

This Government wants to protect and promote the rights of women; we want to protect and promote rights of trans people, too. I am a feminist, and I am deeply—and rightly—proud that this Government has taken such clear and concerted action to protect women’s rights and to promote gender equality. I have stated before, as has the First Minister, that I do not feel a conflict between my support for women’s rights and my support for trans rights. However, I know and I understand that many people do. It is important that we listen to and address those concerns.

Of course, at their core, those concerns are not about trans women; rather, they are about men who seek to abuse women. The fear is that some men will misuse trans equality to access women and to do us harm. I understand that—I understand that predatory men will always seek to find ways to harm women. That is not a new problem in Scottish or global society, nor is it a problem that has been created by, or is the fault of, the trans community.

This Government has a duty to address the concern that reforming the process for gender recognition would increase the risks that women face from men. I have sought to address that already, and will continue to do as we seek to build confidence that achieving equality and dignity for trans men and women is possible without diminishing the rights of anyone else.

In my view, it is important to be clear about what the proposed reform of the 2004 act actually entails and, which is just as important, what it does not entail.

On our proposed next steps, members will be aware that, in 2018, the Scottish Government held a 16-week public consultation seeking views on the proposal to remove, for applicants for gender recognition, the existing requirements to provide medical information and evidence that they have lived in their acquired gender for at least two years. More than 15,500 responses were received. Of them, 49 per cent came from Scotland, and 60 per cent of all responses, and 65 per cent of Scottish responses, were in favour of reform.

However, some groups expressed concerns, and since the closure of the consultation additional issues—many of which are not directly related to the bill’s proposals—have been highlighted. I have taken time to listen to and understand those concerns. I have also heard accounts of the anxiety and trauma that the current process causes trans people, and the difference that reform of the law would make to their ability to live their lives with dignity and acceptance.

I will now set out our proposed way forward. Let me be very clear: the Scottish Government remains committed to reforming the 2004 act and to ensuring that the process for trans people to access a gender recognition certificate is in line with international best practice and, more important, does not result in unnecessary stress. However, I am acutely aware of how divided opinion is on this issue, so I want to proceed in a way that builds maximum consensus and allows valid concerns to be properly addressed. For that reason, we will not immediately introduce legislation to Parliament.

Instead, I intend to publish a draft gender recognition (Scotland) bill later this year, with the bill being formally introduced to Parliament only when there has been full consultation on the precise details. The consultation will cover draft impact assessments, including a comprehensive updated equality impact assessment, to ensure that all rights are protected in a balanced way. That additional step in the process will, I hope, give Parliament and all stakeholders the opportunity to consider and respond to specific proposals, and it will allow discussion to move from the general to the detailed.

All aspects of the draft bill will be open to consultation. We will progress to legislation when that process has taken place and we are content that responses have been analysed and concerns allayed, and that we can introduce a bill that has the support of Parliament and the public. We will inform Parliament of the timetable for legislation once that process has been completed.

I will outline some key provisions that will be in the draft bill for consultation. Existing requirements in the 2004 act to provide medical evidence will be removed, but it is important to stress that the current requirements will be replaced by an alternative statutory process. The term “self-identification” is routinely used, but in my view it does not adequately reflect either the seriousness or the permanency of the process that is envisaged. Applicants will, as they are now, be required to make a solemn statutory declaration that they intend to live permanently in their acquired gender.

In addition, applicants will be required to state in that statutory declaration that they have already been living in their acquired gender. Currently, applicants for gender recognition certificates are required to have been living in their acquired gender for a minimum of two years. It is the Scottish Government’s opinion that that period should be reduced. Our initial proposal is for a three-month period, but that, too, will be fully consulted on.

The draft bill will propose that, after an application for gender recognition has been made and has been checked to ensure that the necessary information and statutory declaration have been provided, there will be a mandatory three-month reflection period before a gender recognition certificate can be granted. At the end of that period, the applicant will need to confirm that they still wish to proceed. Therefore, applicants will need to have lived in their acquired gender for at least six months before a gender recognition certificate can be granted. Making a false statutory declaration is, and will remain, a criminal offence, the potential punishment for which includes up to two years’ imprisonment.

Retaining the requirement for a statutory declaration, making it clear that a false declaration is a criminal offence and building in time for reflection will enshrine in law the seriousness of the process. No one should doubt that it is a significant undertaking, or that it will require the same level of commitment from the individual as the existing system does.

The draft bill will not propose legal gender recognition for people under 16, although we will give further consideration to whether the minimum age of applicants should be reduced from 18 to 16. The consultation will also seek views on what support is needed generally for children and young people who are uncertain of their gender identity. Central to that will be our ensuring that all young people have access to support from a trusted adult who they know will listen sympathetically and without judgment, whether they are from a third-sector organisation or a mental health and wellbeing service.

I have heard directly from young trans people of the fear that they face. Our mental health strategy sets out that we must have a country

“where people can get the right help at the right time ... free from discrimination and stigma.”

That must be true for those who query their gender identity, just as it should be for all young people.

At this time, I do not intend to extend legal gender recognition to non-binary people, but we recognise the need to address the issues that non-binary people face. I intend to establish a working group to consider possible changes to procedures and practice, and what we can learn from best practice internationally, as well as from practice in Scotland and the rest of the UK.

As I said earlier, it is clear that not all the concerns that have been raised over the past year relate to the specifics of the proposals to reform the Gender Recognition Act 2004; rather, they are about wider societal and policy issues that are connected to sex and gender. We recognise that unless we build a strong foundation of clear policy and guidance, many concerns—particularly those of some women—will not be allayed, while at the same time trans rights might not be upheld.

Equally, it is important that we ensure that policies that we put in place protect the rights of different groups of people and avoid what might appear to be some rights taking precedence over others.

Everyone in Scotland deserves to know that the Government will work to promote their rights and to protect them from discrimination. It is not enough for me to say that that is our aim: we must demonstrate the commitment in a way in which everyone can have trust. The Government will, therefore, develop guidance that helps to bring clarity to the issues, and which makes sure that policy makers and service providers understand better how to ensure that the hard-won rights of women and trans people can be collectively realised. The guidance will be used across the Scottish Government, and will be available to all public authorities to help to inform policy development and implementation. Of course, it will also be publicly available.

I confirm that the approach to policy development is being used by the Scottish Government for guidance for schools, which we recognise is a complicated area. The recent guidance for schools from LGBT Youth Scotland on transgender young people was produced in good faith, after wide consultation and engagement, and with the clear intention of supporting teachers to ensure that all transgender and non-binary children and young people are safe, supported and included in their schools.

However, the complexity of the issues means that valid concerns have been raised. The Scottish Government recognises that, in taking the unarguably good general principle of inclusivity, and developing specific recommendations, the approach risks potentially excluding other girls from female-only spaces. That cannot be right. We have therefore decided to replace the LGBT Youth Scotland work with guidance from the Scottish Government. The work is already under way, and the guidance will be available by the end of the year and will be subject to an equality impact assessment.

I will take the opportunity to begin to address an issue that was raised by some women’s groups during the consultation: collection, disaggregation and use of data by sex and gender. The issue does not result specifically from gender recognition, but there is some overlap. It has also received increased prominence following publication of the book “Invisible Women: Exposing Data Bias in a World Designed for Men” by Caroline Criado Perez. The book has drawn attention to the frequency with which data is neither collected nor aggregated in a way that takes account of the differences—including biological and physical differences—between men and women, and their impact in areas such as transport, health and access to services.

I therefore announce that the Scottish Government will establish a working group on sex and gender in data, which will comprise professionals from across statistical services. The group will be led by, and will report to, the chief statistician. The working group will consider what guidance should be offered to public bodies on collection of data on sex and gender, including what forms of data collection and disaggregation are most appropriate in different circumstances.

The debate in relation to gender recognition has raised a wide range of issues. The aim of the Government is to ensure that trans people in Scotland enjoy equality and feel safe and accepted for who they are. We want to achieve that, and we believe that we can do so in a way that does not infringe the rights of anyone else.

The issues need to be considered carefully, openly, thoughtfully and respectfully. In my view, a process of deliberation that is taken forward in such a way will enable us to make balanced and evidenced proposals, and to introduce legislation that can be agreed by Parliament and supported by the public.

I will continue to engage with and listen to stakeholders, and I will maintain my open-door policy for all MSPs. I will carry out my role to protect all rights and promote equality for all respectfully. I hope that in the coming months everyone in Parliament will do the same, and that we will be able to find consensus, just as the Scottish Parliament has done in the past.

I am happy to take questions.