Greens reveal red lines on gender bill as SNP seek to quell revolt

The co-operation deal between the SNP and the Scottish Greens, signed last year, agreed to update the process by which transgender people can gain a gender recognition certificate (GRC) that legally recognises that a person’s gender is not the gender that they were assigned at birth, but is their “acquired gender”.

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

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

Concerns have been raised that “bad actors” , such as male sexual predators, could seek to fraudulently obtain a GRC to access services to target women or that male prisoners could obtain a GRC to get moved to a women’s prison to carry out their sentence in what they may consider a less challenging regime.

The shared policy programme behind the Bute House Agreement, which saw the Scottish Greens co-leaders Patrick Harvie and Lorna Slater become junior ministers in Nicola Sturgeon’s government, did not spell out the precise plans for reform.

It committed only to “reform the Gender Recognition Act in a Bill introduced in the first year of this parliamentary session. This will ensure the process by which a trans person can obtain legal recognition is simplified, reducing the trauma associated with that process.”

Details were then given in the Gender Recognition Reform Bill, introduced by the government to Holyrood in March.

It aims to reduce the time it takes to obtain a GRC from two years to six months (a three month period of living in an acquired gender and three month period of reflection) and lowers the age for obtaining a GRC from 18 to 16. 

The bill also removes the requirement in the 2004 law for a medical diagnosis of gender dysphoria and the need for a doctor’s report.

Seven SNP MSPs voted against the bill with a further two abstaining when the general principles of the legislation were voted on in the Scottish Parliament on October 27.

Ash Regan quit her role as community safety minister to vote against the bill in what was the biggest rebellion suffered by the SNP in 15 years.

Some of the SNP rebels were opposed to proposals allowing a person to self-declare their gender without a medical diagnosis of dysphoria and others unhappy with what they regarded as insufficient protections to services for women.

Despite the SNP revolt, the bill was voted through at stage one by 88 votes for to 33 against.

As a Holyrood committee begins to examine more than 100 amendments to the bill this Tuesday, Ms Chapman, the Scottish Greens’ spokeswoman on equality, outlined her party’s view to The Herald on Sunday on some of the changes that are to be discussed.

An amendment tabled by Labour MSP Michael Marra calls for a counter signatory process to be introduced 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.

Ms Chapman was asked if the Scottish Greens would support it.

“We don’t support it. It removes the principle of self-declaration. If someone else has to confirm it, it’s not self-ID,” she said.

She was pressed if she would be concerned if the Scottish Government supported Mr Marra’s amendment.

She said: “Yes. I would like to think it won’t get to that. I will be having conversations with the government about some of the amendments we are concerned about. 

“From some of the discussions I’ve had I don’t know if the government is minded to support [the Michael Marra] amendment because they can see it would remove self-declaration.

“The whole process of self-declaration is you make the declaration in front of a JP or some other appropriate person. It’s a formal legal binding process. Bringing someone else in removes self-declaration.”

SNP MSP Christine Grahame has 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.

She also wants the bill modified so that 16 and 17 year old applicants are required to have discussed the implications of obtaining a GRC 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.

Ms Chapman said that while the Scottish Greens “don’t support” Ms Grahame's proposed changes she could “potentially understand some of the wider discussion around.”

The Herald asked Ms Chapman if the Scottish Government backed Ms Grahame's amendment could it be a red line and potentially mean the end of the Bute House Agreement. 

Other amendments have been tabled which would exclude anyone under 18 from being able to obtain a GRC.

“I need to have that conversation with Shona [Robison]. A lot of the amendments relate to other parts of the bill . There are amendments which Christine [Grahame] and others have in relating to provisions for 16 and 17 year olds.

"We need to see where some of those conversations go and see what the whole picture looks like,” she said.

“We are very very clear in the Bute House Agreement that we want gender recognition reform that allows 16 and 17 year olds to apply for a GRC and that is on the basis of self-declaration.

“Those are the two sacrosanct elements. Does that mean a six month living in an acquired gender is a red line for us, probably not. But I am going to push it as far as I can. 

“If there was a danger that without that six month period we could lose 16 and 17 from getting a GRC, then my position is clear we want 16 and 17 year olds to be able to get a GRC.”

Ms Chapman has also tabled two amendments to remove the requirement of a three month period of living in an acquired gender and three month period of reflection, and a third calling for a review of the impact of the two periods on transgender people.

Her amendment proposes that the review be undertaken within three years of the legislation being enacted.

“Two are quite clear they are to completely remove both the three month period of living in an acquired gender and the three month reflection period.

“I have been very clear throughout that I don’t believe there is any reason for having to prove that you have lived in an acquired gender for any length of time.

“We have heard very clearly from trans people that a three month period of reflection is insulting and patronising. The idea that someone wake up one morning and say today I am going to apply for a GRC.  

"People who apply for a GRC have been thinking and reflecting for months, years, sometimes decades. And I honestly think those time periods are insulting,” she said.
“I expect I will lose the first two.

"I know there are people in the SNP and Labour who support them but I don’t know that as parties they will agree. So I expect to lose both of those. 

“So my third amendment is seeking a review specifically on the inpact of the two three month periods on trans people. I think generally some people will be put off applying. [The waiting period] is two years currently and this is down to 6 months but three months is arbitrary.

"There is no evidence that either of those three months periods serve any purpose whatsoever. All it does is add another administrative step.”

Ms Chapman referred to Ms Robison’s amendment which looks at speeding up the process of obtaining a GRC for someone at end of their life.

“I agree with the provision that there should be end of life provision but if we can take out the period of living in the acquired gender and also the reflection period for someone at the end of their life, why not for everybody? I don’t see the logic of this.

"It means all the talk about safeguards is nonsense,” she said.

Ms Robison has tabled three amendments including one which would give sheriffs the power to block “fraudulent” applications or applications where it was felt the person did not understand the consequences of the process.

Ms Chapman said she had yet to fully consider this amendment.

SNP MSPs rebels who spoke to The Herald on Sunday last week have indicated they are not likely to change their minds as they have fundamental objections and believe the legislation should not have been subjected to the party whip.

Stage two of the parliamentary process is due to be completed in two committee hearings by November 23 with the final stage three debate and vote on the bill due to take place in Holyrood before the Christmas recess.