SNP propose changes to gender recognition reforms after revolt

The Gender Recognition Reform Bill makes it easier for transgender people to change their legal sex, removing the need for a psychiatric diagnosis of gender dysphoria, reducing the time someone must live in their acquired gender before they can apply, from two years to three months, and dropping the age at which people can apply from 18 to 16, in line with wider Scots law on legal capacity.

The bill also introduces a mandatory three month reflection period and a requirement for the applicant to confirm after the end of that period that they wish to proceed with the application before the application can be determined.

It comes after many transgender people have said the current process is overly medicalised, complex, intrusive and invasive. 

But some opponents of the reforms are concerned about their possible impact on the rights of women to have single sex spaces and services under equality legislation.

Concerns have also been raised by critics that "bad actors" such as male sexual predators who would seek to access services for women or male prisoners hoping to get moved to a women's prison either to target women or to carry out their sentence in what they may consider a less challenging regime.

Ms Robison has acknowledged the concerns made by critics of the bill which includes provision for an application to be revoked.

"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," she told MSPs on October 27.

"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."

In one of her amendments to the bill Ms Robison has tried to address these fears by strengthend measures to block fraudulent applications.

She is proposing to give sheriffs powers to reject the application for a gender recognition certificate if "the application for the certificate is fraudulent" or "the applicant is incapable of understanding the effect of obtaining the certificate".

Ahead of the bill being voted on by MSPs Ash Regan, the community safety minister, quit, prompting First Minister Nicola Sturgeon to accuse her of failing to raise her concerns with colleagues. Seven SNP members voted against the party whip and two abstained. However, the bill was voted through stage one.

As the bill progresses through Holyrood, the SNP MSP Christine Grahame has also put down an amendment proposing Scots aged 16 and 17 would have to live in their acquired gender six months, rather than three, in order to receive a gender recognition certificate.

Ms Grahame has also proposed what she believes is a further safeguard for people in this age group.

Her amendment requires that the applicant has discussed the implications of obtaining a gender recognition certificate with someone who "has a role which involves giving guidance, advice or support to young people" or "is aged at least 18 and knows the applicant personally" before the certificate can be awarded.

She told The Herald today: "My amendments are intended to provide an additional element of safeguarding by requiring 16 and 17 year olds to confirm they have discussed the implications of the decision they are taking with someone who has a role in providing guidance, advice or support, or an adult they know personally."

Labour MSP Michael Marra has also tabled an amendment proposing the person's application for a gender recognition certificate is countersigned, in a similar way to someone making a passport application.

He has proposed that the counter signatory must be someone who has "personally known the applicant for at least two years" and works in a recognised profession or has retired from one.

He lists “recognised profession” to include accountant, civil servant, dentist, doctor, nurse, member of the armed forces, police officer, solicitor or teacher.

It is understood the government may be sympathetic to Ms Grahame's amendment.

However, SNP rebels told The Herald on Sunday at the weekend that they were fundamentally opposed to the principle of gender self-identification and modifying the bill without changing its fundamentals was unlikely to persuade them to change their minds.

Reform of the Gender Recognition Act 2004 was a key pledge made by the SNP and the Scottish Greens when the two parties signed the Bute House Agreement which saw the Greens co-leaders Patrick Harvie and Lorna Slater join the government last year.

Last month the Scottish Greens MSP Maggie Chapman raised concerns in the debate that the reforms were still too restrictive on trans gender people.

She cited aspects of the bill which could criminalise applicants who changed their mind during the process as well as the length of the periods of waiting and reflection.

Ms Chapman also called for more support for terminally ill people who were making an application.

"The bill itself does not do everything that we want it to do," she said.

"Some of those gaps can potentially be filled in the stages ahead of us. I make no secret of - and no apology for - my call for the three-month waiting period and the three-month reflection period to be taken out of the bill, for a reconsideration of the problematic person of interest provisions, for the removal of the redundant and stigmatising new criminal offence and for proper end-of-life provisions to be secured."

In a second amendment, tabled yesterday, Ms Robison has proposed a faster process for an applicant nearing the end of his or her life.

It states: "The Registrar General for Scotland may determine an application...before the expiry of the reflection period..if— (a) the applicant requests in writing that the Registrar General determines the application before the end of that period, and (b) the Registrar General is satisfied that the applicant is gravely ill and not expected to recover."

The legislation is now due to be further scrutinised by Holyrood’s Equalities, Human Rights and Civil Justice Committee at stage two of the parliamentary process.

The second stage is expected to take place over two committee hearings later this month, and any MSP can suggest changes but only members of the committee can vote on whether they are adopted. The deadline stage two for amendments is tomorrow.

The whole parliament can then propose and vote on amendments in the third and final reading of the legislation, due to take place before the end of the year. 

A Scottish Government spokesman said: “The Scottish Government has tabled three amendments to the Gender Recognition Reform (Scotland) Bill.

“We have tabled an amendment that would allow the three-month reflection period to be waived for people who have a terminal illness and are nearing the end of their life. We understand that quickly obtaining legal recognition can be particularly important in such cases to ensure that the record of the person’s death can reflect the way they lived their life.

“We have also tabled an amendment to give the Registrar General the power to reject an application on the grounds that it is fraudulent or that the applicant is incapable of validly applying or understanding its effect. The Bill as introduced allows for a GRC to be revoked on these grounds after issue but this amendment will allow the decision to be made before issuing the certificate where appropriate.

“Another amendment to the Bill will extend the grounds on which a person who has an interest can apply to have a confirmatory GRC revoked to include where the overseas gender recognition has been revoked. We do not expect this to be widely used but it provides for a specific but unlikely circumstance.”