NEW TRANS GENDER LAW: More streamlined and more respectful of the privacy and dignity of trans men and women

Minister Shona Robison, chair of the Equalities, Human Rights and Civil Justice Committee

By Bill Heaney

Many trans sexual people find the current system overly medicalised, complex, intrusive and invasive, according to Shona Robison, the SNP Minister for Social Justice.
And its barriers prevent many trans people from applying for a gender recognition certificate, or GRC.
New legislation will make the process simpler, more streamlined and more respectful of the privacy and dignity of trans men and women, Ms Roibinson told MSPs at Holyrood on Thursday.
She told them that the Gender Recognition Reform (Scotland) Bill, which passed stage one of its process through the Scottish Parliament – by 88 votes to 33 – that the reforms the process that has been in place for the past 18 years for trans men and women to obtain certificate.
The Minister added: “We know from extensive consultation, as well as from evidence heard by the Equalities, Human Rights and Civil Justice Committee, that many trans people find the current system overly medicalised, complex, intrusive and invasive.
“Its barriers prevent many trans people from applying for a GRC. The bill will make the process simpler, more streamlined and more respectful of the privacy and dignity of trans men and women.”
She thanked all those taking part in the debate and said she wanted it to be “open, considered and respectful,” consistent with the approach taken by the committee.
Ms Robison said: “As a Parliament, we have a responsibility to protect and support minority groups. One way in which we can do that is by leading by example with the tone of our discussions. To date, the committee and the Parliament have always ensured that the tone is respectful.

“However, we know that that is not always the case outside the Parliament, particularly on social media. Abuse directed at anyone on this matter, whatever their opinion, is wrong.

“It is important to recognise the discrimination, harassment and abuse faced by trans people in Scotland simply for living their lives, which is wrong, too.

“Statistics from Police Scotland show that the incidence of hate crimes against people for being transgender has increased.

“Evidence suggests that the tone of discourse surrounding legal gender recognition has contributed to that. No matter what our point of view, we can all call that out where we see it and remain respectful to each other’s opinions.”

Tory lawyer Murdo Fraser said that although he endorsed everything that the cabinet secretary had just said about the tone of the debate, there was “real concern about the impact of what is being proposed”.

Christine Grahame SNP and Tories Brian Whittle and Murdo Fraser.

He asked: “Is it the Scottish Government’s position that the issuing of a gender recognition certificate changes someone’s sex in relation to the Equality Act 2010?

“If so, that will open to biological males a whole range of spaces and services that are currently reserved to women and girls, and that change will be made without the need for any medical intervention.”

Shona Robison said no change to the protections afforded to women and girls under the Equality Act 2010,  which people are concerned about.

The MInister added: “I know that, where people have concerns about the reforms, they generally centre on the potential impact on women and girls with regard to their ability to safely and confidently access single-sex services and spaces, to be accommodated safely in prisons and to participate fairly in sport.

“I am sympathetic to those concerns because I know from my own experience, and from years of working to improve women’s rights, that women and girls still face inequality and an increased risk of harm in Scotland today.

“This Government continues our work to address that, including through the equally safe strategy and work to address misogynistic behaviour. We know from all the evidence that the threat to women comes from predatory and abusive men, not trans women or trans men”

Retired international athlete, Brian Whittle, a Tory MSP, said: “The cabinet secretary will recognise my passion to ensure that everyone has equal access to sport.”

Then he asked her: “Does she recognise that, when males and females go through puberty, significant changes happen with regard to menstruation, the Q angle at the hip and the ability to apply force, and that males gain a third more muscle mass and a third more bone density than females, as well as increased heart and lung capacity?

“The fact is that a man can apply 160 per cent of the force that a similar sized woman can. Does the cabinet secretary recognise the danger that that poses to women in sports where power and speed are important? Will she agree that having an open category alongside male and female categories would allow fair and equal participation for all?”

However, Shona Robison told him: “I want to make it clear that the bill changes none of that. It is for sports governing bodies to establish what is right for their sports. The member will be aware of sports governing bodies doing that.

“Helping one group to better access their rights does not mean diluting or diminishing the rights of another group. We have set out why the bill will not change the provision of single-sex services or the arrangements with regard to prisons or sport, because none of those is dependent on possession of a GRC.

“That view is supported by the Scottish Human Rights Commission, Amnesty International and other human rights organisations. I am glad that the majority of members of the committee have also concluded that there is no evidence to suggest that the rights of women and girls are impacted negatively by the bill.

“We all want to live in a society that includes and supports everyone to live in a way that is true to themselves, and that allows them to be accepted for who they are. Improving trans people’s access to their existing legal rights is an important part of making that a practical reality.

“The Scottish Government has consulted widely on this issue, in two of the largest public consultation exercises that we have ever undertaken. I am grateful to the committee for continuing in that vein. A huge body of evidence has been gathered throughout the passage of the bill so far and a significant amount of work has gone into the production of the stage 1 report.

“I am pleased that, following the extensive evidence sessions, the majority of members of the committee support the general principles of the bill. I recognise that a minority view was expressed, but it is also clear that there is strong cross-party agreement that reform is needed.

“It is encouraging that, although the committee has requested more information and explanation in some areas, there are no specific recommended changes to the provisions of the bill as introduced.

“I also welcome the majority view of the committee that the age of eligibility for applicants should be 16. The committee heard that young trans people currently feel excluded from the system, particularly given that they are at an age at which they want consistent documentation before entering higher or further education or starting their first job.

“I agree that it will be important to ensure appropriate support and signposting to resources for all applicants, and particularly those aged 16 and 17. In line with the recommendation that was made by the Children and Young People’s Commissioner Scotland, young people will be involved in development of the process and guidance.

The SNP’s Christine Grahame, a retired school teacher, said: “I support the bill in principle, but I have some concerns about people in the 16 to 18 age range, notwithstanding the issue of guidance, which I know has been discussed.

“I am also concerned about people in that age range being required to have lived in their acquired gender for only three months. Accordingly, I am on the cusp of considering amendments, but I would rather discuss the issues with the cabinet secretary first. I give her an assurance that I support the bill at stage 1, but will she meet me to discuss those issues”

Shona Robison told her:”I am happy to give that commitment. The majority of the committee support a reduction in the period of time that applicants must have lived in the acquired gender. In my view, three months living in the acquired gender, followed by a three-month reflection period, represents a balanced and proportionate reduction in the overall length of the process, while ensuring that applicants have a further opportunity to consider their decision before proceeding.

“I have, however, taken into account evidence given to the committee that the reflection period could be a disproportionate barrier where an applicant is terminally ill. I also appreciate that an important benefit of a person’s having a GRC is that it will ensure that their death registration reflects the gender in which they lived. I therefore intend to introduce an amendment to the bill for a dispensation from the three-month reflection period where an applicant is terminally ill.”

Ms Robison claimed the committee had rightly highlighted the importance to trans people that a GRC issued in Scotland should be recognised in the rest of the United Kingdom. Trans people would continue to be protected from gender reassignment discrimination under the Equality Act 2010 throughout the UK, whether or not they have a GRC.

She added: “It will be for other jurisdictions to set their policy on whether they recognise legal gender recognition obtained elsewhere. Under the current system, some people who have obtained legal gender recognition outwith the UK, including under systems based on self-determination similar to that proposed in the bill, can apply in the UK without needing to provide any medical evidence.

“It is, of course, not uncommon for Scottish legislation to have implications for the rest of the UK. A section 104 order under the Scotland Act 1998 provides the mechanism for the UK and Scottish Governments to work together to make consequential modifications. The Scottish, UK and Northern Irish Governments are working together at official level, and I have written to the UK equalities minister reaffirming our commitment to work constructively together on the matter.

“There is majority support from the committee for the bill as introduced. Four of the five parties in the (Holyrood) chamber advocated for gender recognition reform in their manifestos. The Scottish Government has responded to the committee’s requests for further clarity in its written response. The bill has been subject to extensive scrutiny, both by the public through consultation and by a range of experts and stakeholders during the committee’s evidence sessions.

“It is clear from the stage 1 report that the committee’s majority view is that the proposed reforms will support trans men and women to obtain legal gender recognition in a manner that is significantly less demeaning than the current medicalised system.

“I look forward to hearing members’ views and I welcome the opportunity to engage with them again on the bill. I again thank the committee for its work during stage 1 and in the weeks to come.”

Her motion that the Parliament agrees to the general principles of the Gender Recognition Reform (Scotland) Bill was carried.

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