- 20 Jun 2019
In my statement today, I want to set out the background to the Gender Recognition Act 2004 and the case for its reform.
I will also consider the relationship between gender recognition legislation and the Equality Act 2010.
And outline the steps the government intends to take next, both to deliver dignity for trans men and women and continue to address concerns raised about, for example, access to women only spaces.
Background to the 2004 Act
First, the background to the 2004 Act and the case for reform.
In 2002, the European Court of Human Rights found the UK to have breached the European Convention on Human Rights in respect of the lack of legal recognition afforded to trans people.
The UK Parliament therefore enacted 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 - and to do so without undergoing gender reassignment surgery or medical treatment.
The 2004 Act was, at the time, ground-breaking.
Calls for Reform
However, over time there has been growing recognition that the process enshrined in that Act - which requires applications to be considered by a Gender Recognition Panel - is overly complex and medicalised. For those using it, the process can be deeply traumatic and stressful.
In recommending reform of the Act in January 2016 the House of Commons Women and Equalities Committee stated that the current process - and I quote - “runs contrary to the dignity and personal autonomy of applicants”.
Given this, my party had a commitment in our 2016 Manifesto to review and reform gender recognition law and bring into line with international best practice.
Every other political party represented in this Parliament made a similar manifesto commitment.
The UK Government has also recognised the complexities of the system and in 2018 consulted on reforming the law in England and Wales.
Two points are worth stressing here.
First, gender recognition has been in place since 2005. It is not new. The issue we are debating is reform of the process by which the right to gender recognition is exercised – a matter I will return to shortly.
Second, in reforming gender recognition law, Scotland will not in any sense be leading the way or taking action which is unprecedented.
On the contrary, the Republic of Ireland, Denmark, Belgium and Norway are amongst the countries that have already adopted new gender recognition processes similar to those we have consulted on.
The GRA and Equality Act 2010
Let me 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 these rights are hard won and must be protected.
One particular area of concern that has been raised about gender recognition reform - both during and since the consultation - is the impact it will have on the provision and protection of single sex or women only spaces and services.
Presiding Officer, it is vital to be clear on this important point.
The Equality Act 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 Act will not affect that position.
Rights of Women
This government wants to protect and promote the rights of women. And 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 promote gender equality.
I have stated before, as has the First Minister, that I don’t feel a conflict between my support for women’s rights and for trans rights. But I know and I understand that many do.
It is important that we listen to, and address these concerns.
Of course, at their core, these 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 do us harm. I understand that. I understand that predatory men will always seek to find ways to harm women.
That’s not a new problem in Scottish or global society – nor is it a problem created by, or the fault of, trans people.
This government has a duty to address the concern that reforming the process for gender recognition will increase the risks women face from men.
This is something I have sought to do 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, an important aspect of this is to be clear about what the proposed reform of the Gender Recognition Act actually entails - and just as importantly, what it does not entail.
So let me move now to our proposed next steps.
As members are aware, in 2018 the Scottish Government held a 16 week public consultation.
It sought views on the proposal that 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 should be removed.
Over 15,500 responses were received. 49% of responses came from Scotland. 60% of all responses, and 65% of those Scottish responses, were in favour of reform.
However, some groups raised concerns and since the closure of the consultation, additional issues – many not in fact directly related to the Bill’s proposals - have also been raised.
I have taken time to listen to and understand those concerns.
I have also heard accounts of the anxiety and trauma 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 ensuring the process for trans people to access a gender recognition certificate is in line with international best practice.
And, more importantly, that it does not result in unnecessary stress.
However, I am acutely aware of how divided opinion is on this issue and 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 introduce legislation to Parliament immediately.
Consultation on draft bill
Instead it is my intention to publish a draft Gender Recognition (Scotland) Bill later this year.
The Bill will be formally introduced to Parliament only when there has been a full consultation on the precise details contained within that draft bill.
This consultation will include draft impact assessments, including a comprehensive updated Equality Impact Assessment, to ensure that all rights are protected in a balanced way.
This 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 for consultation. We will take forward the legislation when that process has taken place and we are content that responses have been analysed, concerns allayed and that we can introduce a bill that has the support of this Parliament and the of public. We will inform Parliament of the timetable for legislation once this process has been completed.
Let me now outline now some of the key provisions which will be in the draft Bill for consultation.
Existing requirements in the 2004 Act to provide medical evidence will be removed.
However, 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 this does not adequately reflects the seriousness, or the permanency, of the process envisaged.
As now, applicants will be required to make a solemn statutory declaration that they intend to live in their acquired gender permanently.
In addition, applicants will be required to state in this statutory declaration that they have already been living in their acquired gender. Currently applicants for a Gender Recognition Certificate are required to have been living in their acquired gender for a minimum of two years.
It is the opinion of the Scottish Government that this should be reduced. Our initial proposal will be for 3 months, but again this 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 the necessary information and statutory declaration has been provided, there will then be a mandatory 3 month reflection period before a gender recognition certificate can be granted. At the end of this period, an applicant will need to confirm that they still wished to proceed.
So applicants will need to have lived in their acquired gender for at least 6 months before a gender recognition certificate can be granted.
It is and will remain a criminal offence to make a false statutory declaration, the potential punishment for which includes up to 2 years imprisonment.
Retaining the requirement for a statutory declaration, being clear a false declaration is a criminal offence, and building in a time for reflection enshrines in law the seriousness of this process. No one should doubt that is a significant undertaking and requires the same level of commitment from the individual as the existing system does.
Presiding Officer, the draft bill will not propose legal gender recognition for those under 16. Though we will consider further 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 uncertain of their gender identity. Central to this is ensuring that all young people have access to support from a trusted adult who they know will listen sympathetically and without judgement, whether that be from a third sector organisation or mental health and wellbeing service.
I have heard directly from young trans people of the fear they face. Our mental health and wellbeing 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 querying their gender identity just as it should be for all young people.
I do not intend at this time 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 within Scotland and the rest of the UK.
Sex and Gender
As I said earlier, it’s clear that not all of the concerns raised over the past year relate to the specifics of the proposals to reform the Gender Recognition Act. Instead they are about wider societal and policy issues connected to sex and gender.
We recognise that unless we build a strong foundation of clear policy and guidance then many concerns, particularly from some women, will not be allayed while at the same time trans rights may not be upheld.
Equally it is important we ensure policies we put in place protect the rights of different groups of people and avoid what may appear to be some rights taking precedence over others.
Guidance on Rights of Women and Trans Women
Everyone in Scotland deserves to know that this Government will work to promote their rights and protect them from discrimination.
It is not enough for me to just say that is our aim, we must demonstrate that commitment in a way that everyone can have trust in.
This government will therefore develop guidance that helps to bring clarity to these issues and ensures that policy makers and service providers better understand how to ensure that the hard won rights of both women and trans people can be collectively realised.
This will be used across the Scottish Government and available to all public authorities to help inform policy development and implementation. It will also of course be publicly available.
I can confirm that the type of approach to policy development is being used by the Scottish Government on guidance for schools.
Guidance for Schools
We recognise that this is a complicated area and the recent guidance for schools from LGBT Youth Scotland on transgender young people was produced in good faith with wide consultation and engagement 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 these issues mean 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 work with guidance from the Scottish Government. This work is already under way and will be available by the end of the year and be subject to an Equality Impact Assessment.
In addition, I want to take this opportunity to begin to address an issue that was raised by some women’s groups during the consultation - the 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 the publication of the book Invisible Women by Caroline Criado Perez
This 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 the impact of this in areas such as transport, health and access to services.
I can therefore announce that the Scottish Government will establish a working group on sex and gender in data comprised of professionals from across statistical services. This will be led by and report to the Chief Statistician.
The working group will consider what guidance should be offered to public bodies on the collection of data on sex and gender including what form of data collection and disaggregation is most appropriate in different circumstances.
The debate in relation to gender recognition has raised a wide number of issues.
The aim of this government is to ensure that trans people in Scotland enjoy equality and feel safe and accepted for who they are.
And we want to achieve this - and believe we can do so - in a way that does not infringe upon the rights of anyone else.
These issues need to be considered carefully, openly, thoughtfully and respectfully.
A process of deliberation that is taken forward in such a way will, in my view, enable us to bring forward balanced and evidenced proposals and legislation which can be agreed on by this Parliament.
I will continue to engage and listen to stakeholders, and I will maintain my open door policy to 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 this chamber will do the same and that just as this parliament has found consensus in the past, we will be able to do so again.