Yesterday in a mammoth committee session, the Scottish Parliament’s Equalities, Human Rights, and Civil Justice Committee debated and voted on many of the 150+ amendments proposed by MSPs at Stage Two of the Gender Recognition Reform (Scotland) Bill.

The Committee covered enough of these that we hope that with another session next Tuesday that Stage Two will end on time, and that we could see the final amendments, debate, and vote for Stage Three before Christmas.

Here are our thoughts on some of yesterday’s results:

We welcome the passing of amendment 115, which clarifies that when the Bill states that those who are “ordinarily resident” in Scotland can apply for a gender recognition certificate using the new system, this includes those seeking asylum in Scotland. We think this is really important, as there was some uncertainty that those waiting on a decision on their application (which can take several years) would be able to use the process, including those who were forced to leave countries where it was unsafe for them to be themselves.

We are also glad that amendments 45 and 48 did not pass, as these would have required a counter-signatory confirming that an applicant is trans and has been living in their “acquired gender” for at least three months, which would completely undermine the Bill’s principle of self-declaration.

Similarly, we are glad that amendments 18 and 19 did not pass, as these would have raised the minimum age for applicants from 16 to 18. We hope that this will prevent a similar amendment appearing at Stage Three, and mean that if the Bill does pass into law that legal gender recognition will finally be available for 16 and 17 year olds in Scotland.

However, we are disappointed that amendment 43 passed, which will mean that 16 and 17 year old applicants will be required to have lived in their “acquired gender” for at least 6 months before application, rather than 3 months.

We think this is arbitrary, and introduces more barriers for 16 and 17 year olds without sufficient evidence of any benefit this brings to trans young people. It also makes it harder for younger trans people to ensure that their identity documents align when they apply for new jobs or higher or further education, meaning they may be forced to “out” themselves during the process.

Amendment 39 also passed, meaning 16 and 17 year olds would have to confirm that they have had a discussion about the implications of obtaining a gender recognition certificate with an adult who knows them personally, or someone who has a role which involves giving guidance, advice, or support to young people.

We think it is very important that all young people are given the advice information and support they need to make decisions about their lives, including trans young people. Having access to informed and non-judgemental information and support about their transition, and space to discuss their feelings around it, is something we very much support. However, we do hope that this will not create a barrier to accessing legal gender recognition for those trans young people who may struggle to find or access this support, but who will be required to do so to access their legal rights.

Other amendments which passed, all of which we think are fine, include:

• making sure applicants are aware that submitting a false statutory declaration is a criminal offence,
• allowing the Registrar to challenge an application in Court that they believe is fraudulent, or that a person lacked capacity to make the application, rather than having to issue a GRC to that person and then apply to revoke it later,
• requiring the Registrar General for Scotland to publish online information on the effects of obtaining a GRC and the process for doing so
• waiving the reflection period for applicants nearing the end of their lives,
• allowing non-binary applicants with overseas recognition to be recognised as male or female if they had previously been legally recognised in this way and go on to gain legal recognition later as non-binary (rather than being recognised as the sex originally recorded on their birth certificate),
• allowing a person with an interest to apply to the Sheriff Court to revoke the confirmatory GRC of someone with overseas gender recognition, on the ground that it has ceased to have effect,
• and other minor technical amendments.

We also noted that some community members asked if any amendments regarding non-binary recognition were being considered at Stage Two. Unfortunately no amendments have been submitted allowing for non-binary recognition so far, but amendment 145 would require Scottish Ministers to review the Bill’s impact three years after it comes into effect, including whether any provision could be made for non-binary people.

As it seems non-binary legal recognition is unlikely to be included in the Bill at Stage Three, we do hope that this would be included in such a review, and that by the time a review was done (we think that this would most sensibly be three years after the Bill comes into effect) that the Scottish Government will have undertaken significant work towards making non-binary recognition possible in Scotland.

We will provide a similar update following next week’s session on the remaining Stage Two amendments, and further information on the Bill’s next steps.

You can see all amendments that were agreed to in the minutes of the meeting here: https://www.parliament.scot/chamber-and-committees/committees/current-and-previous-committees/session-6-equalities-human-rights-and-civil-justice-committee/meetings/2022/ehrcjs62229/minutes

And you can find a full list of the amendments here: https://www.parliament.scot/-/media/files/legislation/bills/s6-bills/gender-recognition-reform-scotland-bill/stage-2/groupings.pdf