Gender Recognition Act 2004 Review

– in the Scottish Parliament on 20th June 2019.

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Photo of Linda Fabiani Linda Fabiani Scottish National Party

The next item of business is a statement by Shirley-Anne Somerville, to update Parliament on the Scottish Government’s review of the Gender Recognition Act 2004. The cabinet secretary will take questions at the end of her statement, so there should be no interventions or interruptions.

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

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.

The Deputy Presiding Officer:

The cabinet secretary will now take questions on the issues raised in her statement. I will allow up to 30 minutes for questions. I ask any member who wishes to ask a question to press their request-to-speak button now.

Photo of Annie Wells Annie Wells Conservative

I thank the cabinet secretary for early sight of her statement.

I am very pleased that we have had an update from the Scottish Government on the issue. I speak for all members when I say that the topic has raised strong feelings on all sides and that there has been a very high volume of correspondence.

What I wish to put on record today, and what I have been expressing to all constituents and interest groups who have contacted me about the issue, is my sincere belief that we need to keep the debate respectful and open. We need to listen to one another so that we can get it right.

I welcome the announcement of another consultation. Very often, as politicians, we forget that not everyone is aware that such consultations take place. Given the concerns that have been raised, it is sensible that we allow wider debate to take place. I also welcome the fact that an equality impact assessment will be carried out.

I ask the cabinet secretary for more detail on the alternative statutory process, as that will be the main focus of the bill. Will there be any leeway on the six-month timeframe that has been cited—will there be flexibility to increase or decrease it? Roughly when does the Scottish Government expect the consultation process to be over and responses published?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I thank Annie Wells for her questions and the tone in which we are having the conversation. I hope that, as we move forward, I will be having a conversation with members from across the Parliament. Annie Wells is right to say that people have strong feelings on the issue but that we need to have a respectful and open debate and listen to each other. I am sure that we can move forward if we do that.

The consultation is very important because it will allow wider debate about the detail. There has been a lot of speculation about what I am saying—or not saying—today and we can now discuss that in detail, which I am very pleased about.

As I set out in my statement, the question of the statutory process is open and available as part of that consultation. We will make our proposals, such as the six-month timeframe for a person to have been living an acquired gender before application and the period of reflection. I am mindful of the lessons that we can learn from international examples and what we can do to provide reassurance to those who need it about how that process will work.

I look forward to working with Annie Wells and others on the issue.

Photo of Pauline McNeill Pauline McNeill Labour

I thank the cabinet secretary for advance sight of the statement. It is a comprehensive statement, and I welcome the fact that we have had one. As a member who scrutinised and supported the Gender Recognition Act 2004, I also welcome the opportunity to question the cabinet secretary.

Scottish Labour has always been in the vanguard of promoting the principles of equality, dignity and respect. We strongly believe that people should be able to live their lives free from prejudice. I know from my casework that trans people face prejudice and discrimination every day, and the principles that I have cited will underpin our approach to scrutinising any proposed legislation.

We are clear that specialist services for trans people can be improved now, without legislation. For example, there could be a reduction in the fee for a gender recognition certificate and the processes could be simpler.

I have three questions for the cabinet secretary. First, in the move to a statutory declaration for gender recognition legislation, has any thought been given to how a false declaration could be established?

Secondly, the cabinet secretary said in her statement that the Equality Act 2010 allows the exclusion of trans people

“including where a trans person has legal recognition. The Government’s proposals to reform the Gender Recognition Act 2004 will not affect that position.”

She also said:

“The consultation will cover draft impact assessments, including a comprehensive updated equality impact assessment”.

Can we be clear that we will not be able to draw any conclusions before such an equality impact assessment is carried out?

Thirdly, although I welcome the working group on sex and gender data, will there be representation of trans and non-binary people on it to ensure that scrutiny is inclusive all the way down?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I recognise the history that Scottish Labour has on equality issues in general, including on this one. Parliament, too, can be exceptionally proud of the work that we have done on those issues. Given that history, I hope that we can find a way to move forward in consensus on this issue.

The criminalisation of false declarations is, of course, an exceptionally important aspect of this, and it is the basis on which I hope that people can have faith and trust in the system.

On the question of false declaration, and on other questions, I do not come to the chamber with all the answers today. Although I am putting forward the Government’s proposals, it is very much an open consultation through which the direction of travel and the destination of the changes to, and reform of, the Gender Recognition Act 2004 will be set. The details of how we undertake that reform, including around false declarations, are important and need to be set out. We have tried to do that in the work that we have done to ensure that there is a period of reflection and that a person has to make a statutory declaration in front of a notary public, as well as in setting a very strong prison sentence for a false declaration. However, if there is other work that we can consider, I am more than happy to do so.

My comments on the Equality Act 2010 and on women’s safe spaces were based on what is in the 2010 act, which is reserved and which we will not ask the UK Government to change. Indeed, based on my discussions with the UK Government, it has no intention of changing it. I hope that my statement provided reassurance that women’s safe spaces will not be changed by our proposals. It is important that we carry out an equality impact assessment to consider the changes that the proposed reforms will make, but they will not be around the exemptions for single-sex services.

We have not decided on the make-up of working groups. However, I take the point that it is important that I listen to the trans community, to people who identify as non-binary, to women’s groups and so on. On the question of how we will do that, again, if Pauline McNeill has specific suggestions, I am more than happy to discuss them later, either in person or through correspondence.

The Deputy Presiding Officer:

Before we move to open questions, I note that the front-bench questions have taken a long time. I know that many members want to ask questions, and I ask members to bear that in mind as we move forward.

Photo of Angela Constance Angela Constance Scottish National Party

In her balanced and thoughtful statement, the cabinet secretary reminded us that all parties that are represented in the chamber made manifesto commitments to reform the Gender Recognition Act 2004. Given that we cannot have equality for one group and not for another, I would be grateful if the cabinet secretary would say more about how we will protect and enhance the rights of both transgender people and women without diminishing the rights of either.

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

The Government has an absolute determination to ensure that we have equality for all groups in our community, which includes the trans community, whose members suffer discrimination and can be exceptionally isolated. That is why it is important that we take action. However, we need to consider how we support all groups in our society. That is why, as we move forward with the proposed changes to gender recognition, we—and I—absolutely have to recognise the concerns that have been expressed about the proposals for reform.

We can very much move towards alleviating those concerns if we put in the work, across the parties, to deliver consensus. It is important that we respect the views of people who have such concerns. I fundamentally believe that it is possible for the Parliament to pass legislation that respects the rights of both the trans community and women, which have long been fought for.

Photo of Patrick Harvie Patrick Harvie Green

I am grateful for sight of an advance copy of the cabinet secretary’s statement. I welcome the fact that it contains a commitment to the principle of reforming the Gender Recognition Act 2004, including the move towards a self-declaration system such as those that are already in place, without a problem, in a number of other countries.

I also welcome the balance with which the cabinet secretary discussed the other concerns and questions that have been raised. The statement recognised that many such concerns are not about trans people but about the threat that abusive men pose. All women—including trans women—and other trans people are at particular risk from such behaviour, which we should all want to see being taken seriously.

Trans people have been waiting a long time for this reform. They have support from across the political spectrum and from well-respected women’s and feminist organisations across Scotland. Does the cabinet secretary agree that they deserve to know that a Parliament in which every single member stood for election on a manifesto promise to deliver such reform will indeed pass the legislation? Will she confirm that it is the Government’s intention that legislation will be introduced—

The Deputy Presiding Officer:

Please conclude, Mr Harvie.

Photo of Patrick Harvie Patrick Harvie Green

— in good time to be completed before the end of this session of the Parliament?

The Deputy Presiding Officer:

Before I call Shirley-Anne Somerville to respond, I point out that lots of members wish to ask questions. If everyone insists on making statements before they ask their questions, we will not get through half of the members from whom I have requests to speak.

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I fully appreciate that some people will be frustrated by my proposals and will feel that the pace of reform has not been fast enough for them. I want to see reform of the gender recognition process and to introduce a bill on it. What is more important is that I want to see such a bill being passed by this Parliament, with wide support—not just in this chamber but among the wider public. In my judgment, the proposals that I have set out today are the best way to achieve that. Others might disagree—I respect that entirely—but I want to get to the same destination as they do. I ask those who might be feeling frustrated to work with me to that end. As I said in my statement, we will move forward with a bill once the consultation has taken place and the responses from it have been analysed. We will report back to Parliament in due course on the timetable for such a bill.

Photo of Jenny Gilruth Jenny Gilruth Scottish National Party

The Equality Act 2010 and the Gender Recognition Act 2004 have been in place for more than a decade. The 2010 act provides a clear exemption for transgender people accessing single-sex spaces and services where that is proportionate and reasonable. Will the cabinet secretary explain whether the changes that are being outlined today seek to change that in any way?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

Presiding Officer, with your permission I will repeat what I said earlier on that. It is an exceptionally important point that, quite rightly, has raised a great deal of concern. I again confirm that the 2010 act enables service providers to offer separate and differing services to males and females, or to one sex only, subject to certain criteria. Such services can treat people with protected characteristics of gender reassignment differently, or exclude them completely, where the action taken is

“a proportionate means of achieving a legitimate aim.”

In my statement, I gave the example of the ability of a women’s refuge to refuse entry. I say again that the Scottish Government is not planning to ask the UK Government for any changes to such exemptions in the 2010 act.

Photo of Alex Cole-Hamilton Alex Cole-Hamilton Liberal Democrat

Scottish Liberal Democrats asked for reform of the Gender Recognition Act 2004 in the previous parliamentary session, because it was harming trans people then just as it is doing now. I understand what the cabinet secretary is trying to achieve, but I am concerned that there is now a risk that we might not pass legislation before Parliament rises at the end of this session. For every month that such a debate does not take place in this chamber, one takes place outside and is subject to rising tension and misinformation. If a draft bill will be ready later this year, could we not run the second public consultation concurrently with the stage 1 process, which might give us a fighting chance of delivering reform in the course of this parliamentary session?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

No, I do not think that those aspects can be done concurrently. It would not be advisable.

If I did not express it clearly enough when I answered Patrick Harvie’s question, I say again that we are committed to introducing a bill during the current parliamentary session. That is what I want to do. However, it is imperative that we have a wider consultation on a draft bill first.

I do not believe that what happens during a stage 1 process, important though that is, would allow the type and length of consultation that we will get during a consultation on a draft bill. Within the timetable, it is possible for us to consult on a draft bill, then introduce a bill to Parliament later. We will have the consultation process, analyse the responses to that, and update Parliament in due course.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

I welcome the commitment to a full equality impact assessment, replacing the schools guidance and reviewing the statistics, which I hope will include crime statistics. I pay tribute to the independent women’s campaign groups that have lobbied on this.

Those campaign groups totally respect the right of transgender people to live however they wish to live, but this proposal is about changing sex and it means that any man can still change his sex to female without a medical diagnosis or any gatekeeping at a time when many more people are identifying as the opposite sex without making physical changes.

The cabinet secretary did not mention the fact that the GRA confers extensive rights to privacy that make the single-sex exemptions in the Equality Act 2010 hard to enforce. Will the cabinet secretary tell us whether she thinks that men who have a history of violence against women should be allowed to change their legal sex and conceal their past identity?

I welcome the cabinet secretary’s comments on single-sex rights in the Equality Act 2010, and they are absolutely correct. However, the Scottish trans alliance lobbied to get rid of them and has been telling people that they do not exist and that trans people can access single-sex services. The single-sex exemptions are not being enforced, so could the cabinet secretary issue guidance on that and perhaps review how the Equality Act 2010’s single-sex exemptions are working across Scotland?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

On the final point, I reiterate my point that the Government has absolutely no intention of making any changes to the Equality Act 2010 or the exemptions that are in place, or asking the UK Government to do so.

It is important for me to stress once again the point that I made in my statement that gender recognition has been in place since 2005. That is because the UK Parliament passed a bill because of the necessity to ensure that there is legal provision for people to change their gender. That has been in place since 2005, so what we are debating here is not new. It is the reform of that process.

I also want to reassure Joan McAlpine on one particular point that she brought up. People cannot take advantage of current protections in the Gender Recognition Act 2004 to hide a criminal offence. Individuals can obtain disclosure certificates for employment purposes, but previous names must be provided as part of that process. If a trans person is applying for a disclosure certificate, they can apply using their present name and gender, but they have to give previous names; those must be sent to Disclosure Scotland. It is a criminal offence to make a false statement in relation to an application for a disclosure certificate.

Photo of Jamie Greene Jamie Greene Conservative

We are being asked by many whether we support trans rights or women’s rights. I think that we can do both, and it is right and proper that every one of us in this chamber does both.

Today’s statement will come as a disappointment to some while offering some comfort to others, perhaps in equal measure.

I want to ask about the guidance in schools. It was not clear to me from the statement what exactly is wrong with the current LGBT Youth Scotland guidance that is given out. Why is the minister replacing it, and what will it be replaced with?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

That goes back to one of the areas that I raised in my statement. In general, people have to have trust and transparency around policies and how they have been developed. As I said in my statement, LGBT Youth Scotland went out to wide consultation on the issue. The guidance was delivered in good faith and with a clear intention to help those in the trans community and those who identify as non-binary. However, concerns have been raised about it. My fear is that, given the level of concern that there was, people were losing faith in the guidance and, therefore, it has perhaps not been used or it has been called into question. That is why it is important that the Scottish Government looks at the guidance around policy and implementation, so that people can have faith in the policy and how it has been decided.

My hope from the work that we can do within Government and in other public agencies is that people can have trust in the policy. That will reassure women and those in the trans community that we take the issues that they bring to the Government, such as bullying and mental health, exceptionally seriously and that we want policies in place that can work for both groups.

I agree with Jamie Greene’s statement that we can do both. I hope that I can work with him and others in his party to achieve exactly that.

Photo of Richard Lyle Richard Lyle Scottish National Party

There is no doubt that learning about gender recognition has been a journey of discovery for many. However, I have realised that the facts of what reform is proposed and what it will mean for trans people are different from what people might think is proposed.

Reading from the cabinet secretary’s speech, I note that

“The aim of this Government is to ensure that trans people in Scotland enjoy equality and feel safe and accepted for who they are.”

I welcome that statement. I, for one, I want it to be put over to the public. How can the cabinet secretary do that?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I agree with the member. It is a complex area. It raises emotions. In many areas, but perhaps in this area in particular, social media is not always the most accurate source of information—including about what I am supposedly saying today, never mind the wider subject.

That is why I tried to set out the direction of travel in my statement. I have also published a short fact sheet on the proposals that I have outlined today. In addition, when we publish the consultation on the draft bill, we will also publish more detailed fact sheets. I will consider what more can be done to provide straightforward, accurate information that might allay concerns in some areas. I welcome ideas from members about how best we can provide that accurate and factual information. That is my responsibility and the responsibility of this Government. As I said at the end of my statement, it is the responsibility of everybody in this chamber to carry out that conversation with the dignity and respect that people should have for differing opinions on the issue.

Photo of Kezia Dugdale Kezia Dugdale Labour

Over the past few months, my trans constituents have had their very existence questioned. They have faced hateful rhetoric and have been told that they are psychologically unwell. All that they want is to have a birth certificate that reflects who they are. They are not ill, but this sustained deliberation over their right to exist is damaging to their mental health and wellbeing.

Now that we have put the public spotlight on the trans community, what additional support can the Government offer its members?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I agree with the sentiment behind Kezia Dugdale’s question—all that they want is a birth certificate that reflects who they are. As I said during my statement, I want to pass this reform to recognise the importance that those in the trans community place on that.

I am aware that the debate has been toxic. I am also aware of the impact that it is having on people, including those in the trans community, to whom I have spoken on a number of occasions.

As we move forward with the draft bill and begin to debate the details of, rather than the speculation about, the proposals, I hope that we will be able to move the debate into a different space. As I said in the statement, I will continue to meet equality groups and discuss with them the proposals and the bill, and also the needs of the trans community in general as we move forward to support its members. I appreciate that it has been a difficult time for many of them.

Photo of Gail Ross Gail Ross Scottish National Party

I, too, would like to thank the cabinet secretary for her very measured statement.

I have been particularly concerned about the damage that the current debate could cause to young trans people, who might already feel isolated and stigmatised. What can the cabinet secretary do to reassure them? Will she expand on her comments about what she will consult on with regard to support for young people?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

That leads on well from the discussion that Kezia Dugdale and I have just had about the impact that the current debate is having on the trans community. I very much agree that we need to support young trans people. Since being honoured to take up the post of Cabinet Secretary for Social Security and Older People, I have met a number of individuals from whom I have heard directly on their concerns about the current system, gender recognition and the impact that the debate is having, which I discussed with Kezia Dugdale. I am absolutely committed to ensuring that young trans people should receive the help and support that they need.

Before the consultation is issued, I intend to meet members of the trans community again to hear from them directly about their concerns. I would, of course, be very interested to hear from Gail Ross and other members if they think that there are other suggestions that we need to look at, in relation to not just legal gender recognition, important though that is, but health and mental health and wellbeing, to ensure that members of the trans community are assisted when there are areas in which they think that they still suffer inequality and disadvantage.

Photo of Oliver Mundell Oliver Mundell Conservative

I strongly support the position that the cabinet secretary has set out and her tone in doing so, but does she agree that other people have a legitimate right to reach a different conclusion?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

For this statement more than any other statement that I have made, I am aware that there will be many people who might not be happy about what I am proposing, either because I am not going fast enough in what I am proposing or because they do not want us to do anything. To be frank, we must recognise that a degree of trans phobia exists in this country, which we must take on at every opportunity.

However, I am absolutely open to the fact that people have different ideas on the subject. This is not an area on which we will come to a consensus easily, but I think that we can come to a consensus. The Parliament has risen to that challenge in the past. For example, we have had draft bills on issues such as equal marriage, which have given us the space to do that. We might not have absolute unanimity on my proposals when we get to the end of this process, but I would like to think that, as a chamber, we can unite around the concept that everybody in Scotland—whether we are talking about people in the trans community, women or anybody else—has an absolute right to have their rights protected and respected. That is exactly what I think that this Parliament was established—or re-established—to do.

Photo of Rona Mackay Rona Mackay Scottish National Party

I welcome the announcement that a working group will be set up to look at data on sex and gender, and I was interested in the fact that the cabinet secretary cited the work of

Caroline Criado Perez. How could we use such data for policy making and to promote the rights of women and tackle unconscious bias?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

Rona Mackay raises a very important area. As I said, it is not directly linked to gender recognition, but it is still very important.

As we move towards the summer recess, I highly recommend the book

Invisible Women” to any member who has still not read it.

I have discussed the issue of data on sex and gender with women’s groups for some time. Having disaggregated data that deals with men and women separately can help to show where there is discrimination and can indicate where further work needs to be done, whether in health, in the workplace or in any part of Government. First, we need the data to be right. We need accurate information to be provided about the roles of women and men in society so that we can get our policies right. That is why I think that the working group on data will be a very important aspect of our work on sex and gender in general.

The Deputy Presiding Officer:

The last question is from Jenny Marra.

Photo of Jenny Marra Jenny Marra Labour

I thank the minister very sincerely for her balanced and considered statement. Members’ questions have shown that, across the chamber, there is a wealth of experience and a commitment to getting this legislation right.

Will the minister consider opening her door to members from across the chamber on a regular basis throughout this process so that we can sit down together, represent all views and reach a consensus on the way forward?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

If indeed this is the last question, that is a fitting tone to end on. I would be delighted to take up Jenny Marra’s offer and to work on this issue on a cross-party basis. If she has particular suggestions about how to do that, I would be delighted to speak to her directly about it.

As I said earlier, we are setting out the Government’s proposals about our direction of travel on this. I am moving forward with a draft bill because I am keen to build the consensus that Jenny Marra speaks about. I would be delighted to take up her invitation to work on this on a cross-party basis.

The Deputy Presiding Officer:

That concludes questions on the cabinet secretary’s statement. I allowed a little extra time, but I am sorry that I was not able to take questions from John Mason, Elaine Smith or Monica Lennon.