Seòmar agus comataidhean

I do not support Roz McCall’s amendments in the group, but I am happy to continue to discuss any further concerns that she may have ahead of stage 3.

At present, overseas gender recognition is not recognised automatically in the UK. Persons who have obtained gender recognition overseas and wish to be recognised in the UK have to apply to the gender recognition panel under its overseas track. The overseas track that is operated by the panel is used when a person has obtained gender recognition in an “approved country or territory”, as listed in a statutory instrument made by the secretary of state after consulting the Scottish ministers and the department of finance and personnel in Northern Ireland.

I think that that is the system that Roz McCall wishes to emulate, despite the fact that the list of countries and territories that the UK Government currently maintains has not been updated for 10 years. The list therefore features jurisdictions that have, in that time, changed or updated their systems for gender recognition, several of which are now based on models that are similar to the model that is contained in the bill. Equally, it does not include countries that have since introduced gender recognition systems, including our near neighbour Ireland.

Section 8N(1) of the bill, which these amendments would remove, provides that

“Where a person has obtained overseas gender recognition”,

they are

“to be treated ... as if”

they

“had ... been issued with a full gender recognition certificate by the Registrar General for Scotland”.

In broad terms, the bill’s approach is similar to the approach that is currently taken in Scotland to the validity of marriages that are entered into outwith Scotland, and to the recognition of divorce obtained overseas. It is a more straightforward, and less convoluted, approach than that which is proposed by Roz McCall.

Automatic recognition would, however,

“not apply if it would be manifestly contrary to public policy to”

do so—for example, in a case in which legal gender recognition was obtained overseas at a significantly younger age.

I therefore urge the committee not to support those amendments.

I turn to the amendments in my name. Section 8 of the bill inserts two new sections—sections 8M and 8N—into the Gender Recognition Act 2004, which provide for automatic recognition in Scotland of a gender recognition certificate that has been issued elsewhere in the United Kingdom and of gender recognition that has been obtained overseas.

Amendments 56 and 57 clarify that the automatic recognition ends if the gender recognition that has been obtained elsewhere no longer has effect.

Amendment 58 relates to cases in which someone with overseas gender recognition of their male or female gender goes on to acquire recognition of a non-binary gender in their own country—for example, Denmark or Malta. The amendment provides that, in Scotland, their gender will not revert to being their gender at birth but will continue to be the male or female gender that they had previously acquired.

These amendments are intended to cover specific eventualities in line with the general principles of the bill, and I urge the committee to support them.

I know that the amendments reflect Maggie Chapman’s view that the time period for living in the acquired gender as well as the reflection period should be removed, and that she has taken that position throughout the passage of the bill so far and in our discussions on the matter. Of course, I respect that, just as I respect the other views that have been expressed during the passage of the bill, even if I do not agree with them.

There are views that the time period should be longer or should be removed entirely, or that the reflection period should be removed, although usually with an increase in the time period for living in the acquired gender. However, I have not seen an alternative to our proposals that would be accepted and would keep to the principles of reforming the process. I consider the current requirement for applicants to provide evidence that they have been living in their acquired gender for a period of two years before applying to be unnecessarily long. A reduction in the time period to three months followed by the three-month reflection period represents a balanced and proportionate way of improving the system. Obviously, for 16 and 17-year-olds, it will be a period of six months of living in the acquired gender, if Christine Grahame’s amendments on that are accepted.

However, I consider that the reflection period could be a disproportionate barrier to people who are at the end of life, and I appreciate that an important benefit of legally changing your gender is that your death is registered in the gender in which you lived. Therefore, I have lodged an amendment to the bill, so that an applicant at the end of life can apply for a dispensation from the three-month reflection period. That amendment is in a later group of amendments. For those reasons, I cannot support amendments 87 to 89 and 91. However, I agree with Maggie Chapman that it will be important to keep that under review.

Of course, several amendments have been lodged to review and report on the operation and impact of the bill across a number of areas that we will come to later in the stage 2 proceedings. I am happy to support amendment 141 in this group, and I urge the committee to support it. It will be necessary for us to consider carefully what information and data it is possible and appropriate for us to gather, and we can take forward work on the impact of time periods on trans people who go through the application process. Therefore, I support amendment 141 in principle, but I will look to work with Maggie Chapman and other members ahead of stage 3 to ensure that any report and review amendments that are agreed at stage 2 coalesce around the same time frame.

The guidance to the 2004 act uses examples that include consistently using titles and pronouns in line with the acquired gender, updating gender-marker official documents such as a driving licence or passport, updating utility bills or bank accounts, describing themselves and being described by others in written or other communication in line with their acquired gender and using a name that is associated with the acquired gender.

Those are examples of what could constitute living in the acquired gender. The bill does not change the position in the 2004 act.

I do not consider that amendments requiring applicants to provide evidence that they have been living in their acquired gender, beyond any evidence that is required for statutory declaration, are in keeping with the general principles of the bill, as supported by Parliament at stage 1. Such amendments would introduce another set of barriers. For that reason, I ask the committee to reject Graham Simpson’s amendments.

That is why I have said that the requirement is not about looking or dressing a certain way but about the ways in which a person may demonstrate their lived gender to others. I have given examples of how that might be done with documentation that might provide evidence about how people are living their lives. National Records of Scotland will provide guidance for applicants on how to make an application and will be able to refer to examples based on the guidance to the 2004 act.

As the name of the group suggests, the amendments in this group are of a minor and technical nature. Amendments 53, 64, 65, 69, 70, 78 and 82 have been lodged at the suggestion of the Scottish Courts and Tribunals Service. The bill refers in a number of places to the role of the sheriff, either in giving notice that a certificate has been issued or in giving copies of such certificates to the registrar general. Although that is technically competent, the Scottish Courts and Tribunals Service has suggested that for the sake of clarity those references should instead be to the sheriff clerk as, in practice, it would be the sheriff clerk who would carry out that function.

Amendment 79 relates to a consequential amendment to the 2004 act, which was inadvertently omitted from the bill as introduced. This amendment repeals subsection (1C) of the 2004 act, which provides that, where a full GRC is issued by the gender recognition panel to a person who is a party to a civil partnership or

“a marriage under the law of Northern Ireland ... the Secretary of State must send a copy of the certificate to the Registrar General for Northern Ireland.”

The bill already repeals a similar provision in relation to England and Wales, and amendment 79 does so for Northern Ireland as well.

I move amendment 53.

First, let me say that Sarah Boyack’s amendment is not really about reporting; it is about the appropriate support and information that would be made available to people. We have to be clear about what that is, who provides it and what it is for. If it is about the process, that will already be provided for. The additional safeguards in Christine Grahame’s amendment lay out the process for 16 and 17-year-olds, so that is all there.

On Rachael Hamilton’s final point, I have spent a lot of time in meetings with members from across the Parliament, including her and others from the Conservative Party, Pam Duncan-Glancy, Sarah Boyack and other Labour members.

It would be in guidance.

I would be pleased to have further discussions with Sarah Boyack. For the avoidance of doubt, we want to avoid listing organisations that we deem to be appropriate to provide support. I do not think that that would be a wise thing for the Scottish ministers to do.

With that caveat in place, if Sarah Boyack is happy to have further discussions, I am happy to have such discussions.

The first 10 amendments in the group seek to make a change in the bill as introduced. The bill currently requires the registrar general to grant an application for a gender recognition certificate if the applicant meets the requirements in the bill. That means that if the registrar general considers that an application was fraudulent or that the applicant was not able to understand the process, they would, if the applicant otherwise met the requirements, first have to issue the certificate and then apply to the sheriff for the certificate to be revoked.

To avoid that situation, those 10 amendments would allow the registrar general to apply to the sheriff before a certificate is issued. That is much more appropriate than having the registrar general issue the certificate first and then apply to the sheriff for it to be revoked. The court would then determine whether the application should be rejected or should proceed.

Amendment 67 adds to the grounds on which a person with an interest can apply for revocation of a GRC, specifically in the case of a confirmatory GRC, if the overseas gender recognition that was the basis for it has subsequently “ceased to have effect”. If the overseas gender recognition has been revoked, for whatever reason, an application for revocation of the confirmatory GRC could be made. That provision is unlikely to be used frequently but, given that overseas gender recognition is the basis for a confirmatory GRC, it is reasonable to provide for that eventuality.

Amendment 68 provides clarity that the standard of proof for an application to a sheriff is that, on the balance of probabilities, the GRC application was fraudulent. That is consistent with the usual standard of proof in a civil case, rather than the criminal standard of something being beyond reasonable doubt. That is appropriate, given that, in this case, the sheriff’s decision is on whether the GRC should be revoked, not on whether something is a criminal offence.

I move amendment 47.

Amendment 47 agreed to.

Amendment 124 not moved.

Yes, and we monitor that carefully. As you will be aware, the housing system for Ukrainian displaced persons is a bit separate. They have the welcome accommodation and then we try to get them into host accommodation. There are also opportunities for accommodation in the private rented sector and the social rented sector.

A lot of work is going on, and £50 million has been made available to local authorities to provide new accommodation in refurbished and repurposed properties. We have had a good response from a number of local authorities. The latest is 500 units in Aberdeen that needed refurbishment and had been seen as surplus to requirement. We are trying to keep that housing stream a bit separate to create additional capacity, but we need to keep a close eye on it.

It is really important that the opportunity for host accommodation is continued beyond six months. There have been a number of changes in who is in charge of the programme in the United Kingdom Government. My colleague Neil Gray has sought urgent discussions about the importance of ensuring that we are able to keep hosts beyond the six-month point. English local authorities are really concerned about the matter as well. We do not want people to end up coming out of host accommodation and presenting as homeless. It is really important that that does not happen, so it is crucial that hosts can continue to host while people are supported into more settled accommodation.

All of those things are linked.