 Felly, I welcome to the 15th meeting of session 6 of the Equalities, Human Rights and Civil Justice Committee. We have no apologies this morning, and we welcome Test White MSP to this morning's meeting, and I'm aware that a number of other MSPs will be watching live on ParliamentTV or on catch-up. In our session today, the committee will continue to take evidence on the Gender Recognition Reform Scotland Bill. The responses to the detailed call for views have now been published, as have a summary of responses to sharksurvey. Notes on our Private Informal Engagement sessions and the Informal Briefing sessions with the bill team will be published shortly. As agreed at our meeting on 15 March, the committee will hear from the cabinet secretary at the conclusion of our evidence taking. Our first agenda item is to take evidence from our first panel on the bill, which will focus on children and young people. In addition to this morning's oral evidence, we have written evidence from a number of other children and young people's organisations that can be found on our website. I am pleased to welcome this morning Bruce Armson, Children and Young People's Commissioner Scotland, who is joining us virtually and Ellie Gommersall, president-elect of NUS Scotland and president of the Students Association at the University of the West of Scotland. You are both very welcome. I refer our members to papers 1, 2 and 3. If I can now invite our witnesses to make a short opening statements starting with Bruce Armson, please. Thank you, convener. Good morning, committee. We welcome the Scottish Government's aim to simplify the process and mechanism for obtaining aid. It is in line with international human rights standards and practices, and we recognise the evidence from trans people about their negative experiences with existing processes. In our latest written evidence, we supplemented our previous submissions and highlighted three areas where we think the bill could be strengthened or clarified, namely clarity on the role of the register general for Scotland, more detail on the support offer to 16 and 17-year-olds and concerns over the introduction of a criminal offence and penalties for under-18s. Questions of identity go to the core of a person's dignity, and maintaining and respecting gender identity is one of the areas that the European Court of Human Rights has said that it is one of the most intimate areas of a person's private life. In your role, as human rights guarantors, the framing of that as a rights issue is important. Article 2 of the Convention on the Rights of the Child protects against discrimination, which also includes gender identity as part of other status and puts a positive duty to actively identify children and groups of children whose realisation of rights might require special measures and protections. Article 3 requires that all matters concerning a child their best interest should be a primary consideration. Article 6 obliges states to ensure the maximum extent possible the survival and development of the child, and the term development there is to be interpreted in the broadest possible sense to include a child's physical, mental, spiritual, moral, psychological and social development. In the context of deciding whether to provide legal recognition for the acquired gender of young people, article 6 requires the state to consider whether providing such recognition assists in creating conditions conducive to the optimal development of the young people. I note from the evidence that the committee has received from young trans people, particularly around barriers in participation to education and the impacts on their physical and mental health. Article 8 and 14 cover identity and thoughts and beliefs respectively. Article 12 requires the states to provide children with the right to express their views and the due weight to be given to that in accordance with their age and maturity. That applies both to the discussions that you will be having and the Parliament will be having in terms of what the system should be, as well as for any individual accessing that system. Importantly, the committee on the rights of the child in their general comment number 20, 19 and 2016, where they focused on rights during adolescence, identified lesbian, gay, bisexual, transgender and intersex adolescents as a group requiring particular attention in order for the realisation of their rights to occur. In that same general comment, the committee strongly endorsed the rights of adolescents to respect for their emerging autonomy. Article 16 of the convention provides the right for privacy, home and correspondence. It is analogous to article 17 of the international covenant on civil and political rights and article 8 of the European convention on human rights, which played a central role in establishing gender recognition across rights across Europe. Since 1996, the European Court of Human Rights has made clear that there is a requirement for states to put in place processes to gender recognition. Since 2015, the Parliamentary Assembly of the Council of Europe, in its resolution 2048, called on all states to develop quick, transparent and accessible procedures based on self-determination. We welcome the work to bring Scotland into line with this recommendation and note the work that is happening in other countries on this issue, alongside the necessary work to support services and make sure that support is available for all children and young people under 18. The National Union of Students has a long and proud history of standing up fair LGBT plus rights, and I am pleased to be speaking to the committee today. My first official capacity is NUS Scotland's president-elect and is the first openly trans person to assume the role of NUS Scotland president. As such, I bring to the committee today both my own personal experiences of being a trans woman in Scotland and the experiences and views of Scotland's student movement as we strongly support the reform of the Gender Recognition Act. This bill is one of the most widely consulted on pieces of legislation in the history of the Scottish Parliament, and we welcome that the bill is being taken forward to bring Scotland closer to international best practice. In particular, we welcome the proposed removal of the requirement for a diagnosis of gender dysphoria in order to obtain a gender recognition certificate. The World Health Organization no longer recognises gender dysphoria as a mental health condition as of the ICD-11, but the current process to obtain a gender recognition certificate in Scotland effectively still treats it as such. This does not match the experiences of most trans people and only increases stigma. This is just one part of the highly medicalised gender recognition certificate process, which is intrusive, invasive and dehumanising. The current requirement for a diagnosis of gender dysphoria, as well as invasive medical questions, is only made even harder for trans people due to the horrific waiting times for Scotland's NHS gender identity clinics. Current wait times for just an initial appointment can be over four years, and the cost of private healthcare and doctors' letters is simply unaffordable for many trans people who are disproportionately likely to be experiencing poverty. This is particularly inaccessible for those of us who are also students. Student loans often do not even cover the cost of the roof above our heads, let alone private healthcare. We also support provisions in the bill to reduce the minimum age for applicants from 18 to 16. We know from research conducted by NUS in 2014 that young trans students can face specific challenges due to their legal documents not matching their lived reality. In particular, that can cause real distress if a trans student is forced to register with their institution in the wrong gender, or if there are incongruences between different legal documents. That can cause confusion and even unnecessary investigations into fraud when applying for things like student finance. That is a hugely important piece of legislation for trans people in Scotland. It is incredibly important that we get it right. I thank the committee for hearing our views and I look forward to answering any questions that you might have. I move on to questions starting with Maggie Chapman. Good morning to both Bruce and Ellie. Thanks for being with us this morning. Bruce, if I could come to you first. In your opening remarks, you highlighted the three areas of concern or areas where you wish there to be greater clarity. Can I just ask for a little bit more detail around your concerns or questions around the role of the Registrar General and how you would see those being dealt with effectively? Thank you. Are you still not yet sufficient clarity in terms of issues around children's rights to privacy and data protection in terms of what investigable scrutiny role the Registrar General might have in assessing a child's understanding or capacity? That would generally be only appropriate for a suitably qualified professional or medical professional in other areas of children's lives. We are really interested in what additional resourcing and support will be put in place for the Registrar General in order to ensure that the information that is being assessed is appropriate. What information is being sought and what evidence will be sought by the Registrar in the Council of Europe's Child Friendly Justice guidelines? They outline the need for child to be able to access justice and have a few hearing, but also to be able to obtain independent advice and advocacy in all administrative processes and challenges around that. I think that there is still some more information that is needed about how the process will work in terms of what questions will be asked, by who and how, and what support will be provided. We are keen to make sure that there is more identification of what support will be available for young people going through the process. The move away from a tribunal to an administrative process is a legitimate aim in terms of removing barriers and unnecessary hurdles in the process of obtaining a gender recognition certificate. That is very much in line with the recognition to ensure the growing autonomy of children, but it also needs to come for those young people with protective and supportive processes based on their ability to engage with it. A few key points would be reflecting again on that obligation to non-discrimination and the active obligation to take positive action to support young people who might require special measures or protections. There are safeguards provided in other aspects of Scots law where children are exercising participation rights. If we look at section 3 of the Age of Legal Capacity Act 1991, which sets out issues around capacity, there are strong protections to make sure that there is no detriment or adverse consequences for children. The protections need to be put in place to make sure that that is there as well. In the policy memo, the Scottish Government says that there will be further need for clear and accessible guidance and support for younger applicants to ensure that they understand and carefully consider their decision, and that is absolutely essential. What would be useful throughout the process would be to ensure that we understand what that guidance will be and what supports will be available, particularly for 16 and 17-year-olds, to make sure that they fully understand the implications of legal gender recognition and that they have the support that they are entitled to. In the bill's financial memorandum, the anticipated costs are primarily associated with the cost of IT systems and application forms, but we would like to see proper support put in to ensure that the process is for additional careful consideration of applications for 16 and 17-year-olds or the possibility of sense of investigation, which could include face-to-face conversations with the applicants. We would need to be very clear about how that is being supported and who would be doing that, where those skills are going to be coming from. Children and young people need to be involved in developing those systems as well. I think that there is more need to make sure that young people are involved in developing the systems that will help them go through the process. That is reflected very strongly in article 12, particularly article 122 of the Convention on the Rights of the Child, which gives additional participation rights in the context of judicial and administrative proceedings. That would be covered in terms of the additional obligation on the state to make sure that there is special consideration for 16 and 17-year-olds going through this administrative process and making sure that the register general is adequately resourced and supported to ensure that they can fully respect, protect and fulfil children's rights in the context of the 16 and 17-year-olds who will be included here, making sure that they can understand the respect for child's private life and that it is a child-friendly administrative process. All of that comes back primarily to ensuring support and linking back to the fact that that is seen and recognised as inherent to someone's personal dignity, and that respecting and maintaining that is vitally important, particularly for those under 18. It would be useful to have more information about what support will be provided to young people who are accessing the process. Thanks, Bruce. That is helpful. In your opening remarks, you also very clearly highlighted the positive duty that we have to ensure that the accessing of rights by young people. Can I ask whether you have any examples or whether you have talked about the administrative process and the need for that to be child-friendly, for that to be a clear process as well? Are there any examples elsewhere where an administrative process is not adequate or where the administrative process for gender recognition has fallen short in some way that you are aware of? In terms of our discussions with other countries, no, we do not have a lot of information on that. We have been discussing with Children's Commissioners and Ombuds in some of the countries that do have systems in place for gender recognition for those under the age of 18, but I could not at this stage point to a specific example. More generally, it is probably useful to say that generally most systems that are administrative or judicial are designed by adults, for adults and usually not particularly child-friendly at all. There has been a strong push across judicial and administrative systems, including things such as complaint systems, to take a much more child-friendly approach. That is another part of much broader work that needs to be done to involve children and young people in the design of processes that they are going to be using, because most administrative processes can be very challenging even for adults. We have to take into account the additional obligation and the best way to do that is to involve young people in the design of the processes. That is helpful. As you say, if it is a good process for young people, it will be a better process for everybody anyway. Ellie, can I come to you and ask—do you echo the calls for further information around the role of the Registrar General and the resources and support that will be available? Do you have any comments on that? Absolutely. I align myself with what Bruce was saying. I think that not just for young people, but for anyone, having that support to be able to complete the process is always welcome. I often joke, but there is a lot of truth in it that the hardest part about being trans is the admin. I think that the process of applying for a gender recognition certificate can be tricky, having that support in place—as has been said—if you have that support in place for young people, it makes it more accessible for everyone. Going back to the mechanisms in the process, I ask the commissioner your response to the consultation highlighted that there is no mechanism in the proposed reforms for setting out an individual child's understanding of the process and its consequences would be assessed as that concerns still stand. I think that there needs to be much more support and explanation of what those supports will be available and how any assessment would be made recognising the additional protection rights that we have to those that are under 18. What supports will be available to ensure that understanding and assessment might be made in terms of assessing that a young person does not understand and what mechanisms a young person has for challenging that. There is still some further clarity that is needed about the process, yes. Consideration does not explicitly factor in the development of additional careful consideration of applications from children or the sensitive investigation or even the face-to-face applications. You also stated that it is unclear whether the national records of Scotland currently have the expertise to undertake such a role and are likely to require additional specialised staffing. Do you believe that the provisions of the sport has been hastily thought about and no real consideration of its potential costs or services will be provided? I would certainly like more explanation in terms of additional funding that might be required and what that would actually look like. Again, I would like to see young people involved in those discussions, so them saying, this is what we think that we would need, this is what would help us with the process. I think that there is more information that needs to be drawn out through the legislative process, particularly around what support would be available to put in place for those things, because it is not contained currently within the financial memorandum. I think that there is more information that is needed. Last week, we heard from the EHRC that individuals who acquire a GRC can access women and girls single-sex spaces such as toilets, changing rooms, refuges and hospital boards, and that the inclusion of individuals with GRC would be direct discrimination subject to justification. There are concerns from those opposed to the bill and that the self-decloration aspect could open the bill up to abuse by bad faith actors. Do you think that there are certain groups of individuals, for example those in the sex offenders register, that should be ineligible to apply for the GRC on the basis of self-decloration? If not, are there any other safeguards that you think would be best placed to ensure that there are no unintended consequences of the bill on children's rights? I will go to Ellie first on that one. I think that it is really important that we are absolutely clear on what the bill does. Single-sex spaces are covered under the Equality Act and having a gender recognition certificate has no impact on anyone's access to things like toilets, changing rooms. Many trans people who have not obtained a gender recognition certificate will still access single-sex spaces that align with their gender, rather than their gender assigned at birth. It is really important that we are clear that the bill will not have any impact on access to single-sex spaces. As such, I do not think that there is any category of person who would be excluded from applying to the bill. It is also really important that we also think about how, if a predator was wanting to access single-sex spaces in order to commit crimes, they would not go through the process of making a statutory declaration of obtaining an already quite difficult to obtain a gender recognition certificate in order to do so. People do not check birth certificates as they walk into a toilet. However, to commit those crimes, they are already crimes against the law, so there would not be any difference whether someone had a gender recognition certificate or not. Ily, just to follow up on that, you just mentioned the fact that the process is pretty rigorous right now, but then the process going forward with this bill would be much easier. Do you think that there are no safeguards in place that that would open up to those predators? I think that the safeguard is that even if we simplify the process, it is still a process of making a statutory declaration. I do not see any reason why anyone would do that unless they were genuinely trans. It is also important that we acknowledge the stigma and hostility that still comes about in society today, unfortunately, with being trans. I do not think that anyone would put themselves through that in order to commit a crime that they would be able to commit regardless of whether they had that certificate or not. It has no bearing on it. We have to be really, really clear on what having a gender recognition certificate does, and accessing single-sex spaces is simply something that it does not do. Thank you, Ily. It is over to you. Obviously, this is a big concern out there in a big question that everybody is asking. Will you give me your view on that? I agree with Ily. I think that addressing those risks that you have identified and people are concerned about, I have been done through the individual assessment that is currently done. I think that there is certainly a lot of discussion that we should be having about strengthening protections against those individuals who are at risk, but rather than implying a whole category of people who are at risk in restricting their rights, we need to look at how to strengthen the protections against those individuals who are at risk. We certainly should not be dismissing those concerns more generally. We need to be discussing them very openly and we have to be very careful to ensure that, in ensuring the objectives of the bill, there are not unintended consequences. We also, as Ily said, need to be careful in framing those concerns, but it does not lead us back to the very thing that we are trying to address, which is further stigmatising a group that is already significantly at risk in terms of their rights. The experts have looked at that in detail. I felt that the concerns have not been evidenced internationally that people would be using that in that way, partly for the reasons that Ily has said. I agree with the Government's position and would point you to the analysis set out by the Scottish Human Rights Commission that the process of acquiring a gender recognition certificate, which is the purpose of this bill, does not increase those risks and negatively affect those rights. If there was real and concrete risk of the rights of others—sorry, the Simpson noise. If there are real or concrete risks to the rights of others emerging from the progress towards the fulfilment of human rights of trans people, human rights law provides for a balancing mechanism with which to resolve that. The manner in exercising fulfilment of one person's rights, if that creates a real and concrete prospect of harm to others, it can be a balance to ensure a fair outcome. However, it is down to whether there is a real and concrete prospect of harm that would justify the interference with the article 8 rights—the right to respect for private and family life—of trans gender people. We would need to come back to whether there was a prospect of substantial detriments in order to have a look to see whether there is a fair balance of that. I agree with the Scottish Human Rights Commission that the removal will not be any change in relation to single-sex services and that the Equality Act will continue to apply, because already we have the GRC not being determinative and where there is an objective justification and a proportionate means of achieving that aim. EHRC last week recognised that in saying decisions about single-sex services, excluding or providing different services, trans people need to be justified regardless of where their individual is. Addressing the risks posed by individuals needs to be done by strengthening the protections against the risks that those individuals pose, rather than the implication that a whole category of people are at risk and further risk stigmatising trans people. We have spoken to colleagues in Malta, Norway and Ireland. Each of them was, in the past 10 years, legislated to provide legal gender recognition for under 18. Our colleagues have reported that they have not identified any of the negative impacts that people are concerned about. However, as we change and do better at recognising that the rights of trans people and particularly trans young people, there is more need to research over time and very close monitoring to ensure that there are not any unintended consequences or impacts. It is something that we need to closely monitor, but there is no evidence at this stage to suggest that we could create additional barriers on the basis of risk that is in evidence. Thank you, Bruce. I want to ask a question about the time periods, if that is okay. Specifically, could you set out the impact that the time period could have on young people and in particular students? That is both the three-month wait-in-advance and the three-month reflection period. Can you also talk a little bit about the current longer time period and the impact that that can have? Bruce, if it is okay, could you also talk about those two time periods as well? Thank you very much. We do not support having arbitrary time periods that are currently included in the bill. There is no evidence of their benefits. I think that it is really important for us to acknowledge that, as I said in my previous answer, that coming out as trans is quite a big step for people to do. Trans people will likely have undergone quite a considerable amount of reflection and thought before they come out. I think that the current two-year waiting period, we have to prove that you have been living in your acquired gender, as I think it is described. That is something that is quite difficult to prove. I would challenge cisgender people to think about how they would prove that they have been living as their gender for any period of time without narrowing that gender down to arbitrary stereotypes. As a result, the main way in which you would prove that, whether it is a three-month waiting period or a two-month waiting period, is through forms of IDP, such as having a driving licence or a passport that has your true name and titles on it. That can be really expensive. The cost of getting a driving licence can be a significant cost, especially for young people who are not likely to have spare money in their pocket and a passport that is even more expensive. As a result, that can be a huge barrier. The other thing, of course, is that having that waiting period means that, during that period where you might have some documents changed or others not, or that you are living as your true gender without having the documents to back that up, can cause some real difficulties in basic administrative tasks. Things like applying to college or university might mean that, during that period, you have to register as your gender assigned at birth, which does not necessarily match the gender that you are living and presenting as. That can be dehumanising and stigmatising. In addition, as I mentioned in my opening remarks, where you might have some documents such as a passport or driving licence that have been updated and others such as a birth certificate that have not, if you are submitting both of those to an application for something like student finance, that can even lead to potential unnecessary investigations into fraud. It can cause some real challenges there. What is really key is that, whether we are talking about a three-month waiting period or a reflection period, there is no evidence that shows that this would be a benefit to applicants for a gender recognition certificate. Anyone who would be applying for what is quite a serious thing would have undergone a significant period of reflection by themselves anyway. Applying for a gender recognition certificate is often one of the last things that a trans person will do, because it tends to have less of an impact than things like how you present or how you are known to people. The committee has already heard directly from trans people, including trans young people, around the challenges here. It is absolutely key that you are hearing their voices directly in terms of the impacts and challenges around that. The bill does not provide any guidance to define what living in an acquired gender means. There are some questions here around if there is a process that applies to children, how would staff dealing with those applications make an assessment of a child's understanding of it? That is a similar concern that we have in relation to a person with an interest. I think that there is also a risk here around the danger of reinforcing the socially constructed gender roles. A particular relevance here would be the work done jointly between the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination Against Women, who issued a joint general comments, general recommendation, which touched upon some of the damaging things to women and children's rights of gender stereotyping and more broadly. There is a question in terms of whether that increases the risk of some of those concerns. Time periods will always appear arbitrary unless they are linked to the support of provision for everybody, but my concern is for young people. In assessing whether there is an additional barrier or necessary and proportionate, I would like to have more explanation in terms of whether it is perhaps in some way associated with additional support or access to services. This is a conversation that we have been having with Irish colleagues. They have been working on this for some time now. One of the things that they have been looking at in terms of if we are putting in place time frames or additional barriers that make the system more complicated or longer should only happen if it brings with it the entitlement to access other services that are useful to trans young people. A monthly year in terms of whether there is any particular additional support that you might get during the prior period or particularly during the three-month reflection period. That does not seem to be very clear, but that would seem to me probably the main justification that you might use in terms of that it allows you to access additional support services and, therefore, that speaks to the kind of proportionality or purpose of it. Thank you, convener, and good morning to you both. It is lovely to see you here. We have touched upon a little bit about the reducing of the minimum age to obtaining a gender recognition certificate from 18 to 16. There has been some quite polarised views on this in regards to the competency of the young person and whether there should be parental consent involved with that. I would be interested in hearing both your views on that, if I could start with Bruce. We support the move to lowering the age to 16. The protection and participation rights are not mutually exclusive. A process that recognises the growing autonomy of young people but also recognising the need to support and protect them is what we are looking for. Minimum ages can be very confusing and complicated, but the convention on the rights to the child is very clearly that when you are putting in place something for protection, for example, in relation to the justice system and the age of criminal responsibility, what you are looking to do is put in place a very high age of things like criminal responsibility or where the minimum age is necessary to correct potential abuses in relation to things like sexual consent, you need to make sure that the children's rights are not damaged through that process. Where age restrictions do not serve a protective purpose and potentially curb children's rights to development and their freedoms, the minimum ages should be avoided. In situations in which we have that tension between protection and autonomy, which comes up a lot in relation to things like consent and medical treatment, you should look at the capacity as the deciding factor. It would probably be kindest to say that it is developed in an ad hoc manner. We have a very confusing range of age thresholds for children. It is one of the things that children and young people often express concern and confusion around. It creates a really confusing and inconsistent landscape in terms of age thresholds, which often appear to be arbitrary to children themselves. For example, in Scotland, we have an age of criminal responsibility at 12, two years below the international minimum, and we imprison older children, but they cannot vote until they are 16 for Government elections or 18 for UK elections and referenda. The convention requires that all children, including the 16 and 17-year-olds, are catered for in this bill. It says that they need to be treated as children in all circumstances. That is the protective element—the things that I was talking about before in terms of making sure that they have the support that they are needed. It strongly recognises the growing and evolving capacities as children transition into adulthood. It does not mean that you lose your right to protection and support. Those things have to be in place, but the levels of responsibility that you get need to be recognised as well. Protection and participation are not exclusive. The recognition of the autonomy of the young people included in the bill is very welcome, but that does not obligate the need to provide support and protection. There is nothing in the bill in terms of how an individual's child's understanding of the process and consequences will be assessed. That goes back to the point that I was making earlier. There needs to be more discussion around what support would be in place there. We can look to other parts of Scotland's law in relation to that. The Scottish Government said that there is need for further guidance to ensure that the understanding and consideration of the decision and the national records of Scotland already routinely give careful consideration to other issues. In relation to that, there needs to make sure that there is a supportive process and clarity in terms of if and when necessary. It will be to undertake the sensitive investigations that are set out, which apparently could include face-to-face conversations. The intention to ensure that every 16 or 17-year-old would be offered or encouraged to take up the option of a conversation to talk through the process is welcome, but more information is needed at this stage. There is quite limited information in terms of what that would look like and how it would play out. Again, it goes back without repeating myself to the issue of making sure that funding and specialist support is in place. In relation to parental consent, in some other countries, there is the requirement for parental consent for under-18. None of those are directly analogous to the Scottish proposals, and that reflects something that goes throughout children's rights. In many of those countries, parental consent is needed for a lot more, particularly in relation to accessing health services and others. That is work that we have done a lot on previously. Scotland takes a very different approach in terms of recognising the autonomy of children and young people. In some other countries, there is a much more paternalistic approach, which does not properly recognise the rights of the Convention on the Rights of the Child, where parental involvement can often be throughout childhood. It certainly would not be an approach that we would want to go down in terms of moving towards a more paternalistic approach. We strongly recognise the important role and the primary responsibility on parents to provide guidance support to their children and on the state to ensure that parents are supported in that role, but we would not want to see that come in and infringe on the growing autonomy of children and young people, and that would not be consistent with the way that Scotland usually approaches that. I can't send the signal to you. We need to have slightly sharper questions, because we've got quite a lot of questions to come through back to Karen. Thank you, Bruce, for that answer. In particular, I'm really interested in how we can see the support and guidance for young people going forward and trying to take note of that. We support the provisions in the bill to lower the age to 16. A lot of the students that we represent in further education will be 16 or 17. Many students starting university will be 17, and of course those students who will be applying to further or higher education at those ages will likely be 16, 17 or even younger. It's really important that those students are able to obtain a gender recognition certificate without parental consent. For some of those reasons that I outlined earlier around some of those difficulties that can arise where you might have to register for your institution in the wrong gender and some of the complications that that can cause. For example, on top of what I mentioned earlier, there can be some challenges where if you are graduating under a different name or gender than where you've registered the institution with that, that can cause some complications and it can make it really difficult for you to be able to obtain your qualification in such a way that it doesn't out you any time that you present it. Equally, it's the distress that can arise from attending college or university and being recorded incorrectly. There was a study by Dr Stephanie MacKendrian and Dr Matteson Lawrence in 2017 from that 86 per cent of respondents cross further in higher education in Scotland experienced barriers to their learning or work as a result of their trans or gender identity. Equally, we know from young trans people who undertook LGBT youth Scotland's Life in Scotland for LGBT young people that research showed the considerable mental health issues that young trans people in Scotland faced with suicidal thoughts at 66 per cent of trans participants, which is almost double that of cisgender participants at 34 per cent. We see some of the distress that's caused to trans young people in Scotland by allowing them to obtain a gender recognition certificate and be recognised as their true identity. That will remove a lot of those barriers and remove a lot of the distress that they currently face. Thank you, convener. I just had a follow-up for one of Bruce's responses if that's okay, Bruce. You've spoken about the need to obviously balance the right to participation and protection in the autonomy. Can you tell us a bit more about how we could make sure that the bill did that in terms of specific areas where it could be amended around the statutory declaration so that we can balance participation and protection appropriately? Can you also maybe talk a little bit about the presumption in the children's bill that children at the age of 16 have capacity in the courts? That's the kind of early assumption. Is that something that should be applied here, or how could we address the differences in the legislation across the others? Thanks, Pam. I was also noting the convener's instruction with relation to privacy. Part of that is about some of the things in guidance and support and training in terms of understanding what's going to be happening rather than necessarily a need for amendments to the bill itself. It's answering some of those unanswered questions in terms of what that would look like and also really addressing the issue that young people don't seem to be involved in the development and consideration of those processes. I don't have specific recommendations in terms of amendments to the bill. What I would like to see would be more explanation from Government in terms of what the intention is here in terms of ensuring that that support is going to be put in place and how young people will be involved in it. In the bill, we talk about residency. It provides in the bill that those born in Scotland or those ordinarily resident in Scotland may have the opportunity to apply for a gender recognition certificate. There have been some concerns expressed that that might mean that trans people from other parts of the United Kingdom may then choose to come to Scotland to apply for that gender recognition certificate. That might be because they have not the supportive network that they have at home or their family circumstances. Do you believe that that is a potential and is a concern? And can you explain the views that you may have on the requirement for this residency in relation to 16 and 17-year-olds? It is not an issue that we have looked into in detail. I think that any country that puts in place a progressive human rights approach does have people wanting to come and move to that country. In terms of being ordinarily resident, we need to look into ensuring that that was properly interpreted. However, it is not something that has come up in the context of the discussions that we have had with those in other countries in terms of the tourism and someone coming for the specific purpose of that. It is not something that has been raised with us by colleagues internationally. Do you have any views on that? This is not something that Bruce has looked particularly into, but I would just add that I myself was born and raised in England when I was deciding to come to university and looking at different institutions that I might like to go to. I was keen to move to a Scottish university because of some of the more progressive general politics and approach to equality that Scotland was taking. I would hope that we would attract people from not just the rest of the UK but from anywhere who wants to live in Scotland because of that progressive approach. I would say that there has been another example where there is the fear that people might come to Scotland to take advantages. When you look at things like free tuition, I am a fee-paying student in Scotland because I am English. I pay £9,250 a year for my studies. Our position at NUS is that if we take a more progressive approach and attract people to move to Scotland, that is something that should be welcomed. That is mirrored in our attitude towards tuition fees and gender recognition certificates. You talked about the support mechanisms that are required to indicate that the 16 or 17-year-old would have a friendly, dignified and respectful approach to how they are managed and how they are progressed. Under the whole area, do you believe that we have that at the present and does the bill give that flavour to ensure that someone who is either 16 or 17 would be being fulfilled in this process at this stage? That is a great question to ask, 16 and 17-year-olds. I think that there is more information needed in terms of what that will look like and the process for which it would be developed. I am not necessarily saying that that needs to change on the face of the bill but, throughout the passage of the bill, I would like to see more information on that. Do you believe in that as well that there needs to be a better and a more respectful process and that that whole process is managing to challenge and can contain that? Yes, absolutely. I have two broad areas of questioning, convener, if you do not mind. The first is on the diagnosis of gender dysphoria or the support that the committee has heard for the removal of the requirement. Earlier, you referred to your opening statement. You have made your views and the views of your organisation quite clear in that. Before I come to Bruce, have there been anything else on this particular requirement that you wanted to put on the record for committee members? I think that I covered most of it in my opening statement. I think that what we are seeing around the world in international best practice is that there is no requirement for a diagnosis of gender dysphoria. That does not match the experiences of a lot of trans people. I think that it is really important that we acknowledge that that does not necessarily fit into our experiences. Equally, requiring that diagnosis is the reason why I have not sought a gender recognition certificate myself yet, because I have been sitting on the waiting list for the gender identity clinic in Glasgow for just under four years now. I have no sight of when my initial appointment will be. That is just an initial appointment that does not necessarily mean that anything will happen at that appointment. I do not have the money to be able to afford to go down that private healthcare route of getting doctors' letters and things like that and paying a significant cost. That can be a real barrier to trans people. In answering Pam Duncan-Glant's question earlier around the waiting periods, I spoke a little bit about how those waiting periods cause significant distress and harm to trans people. Having that requirement of gender dysphoria is essentially another huge waiting period, often, as I say, of over four years, because of that requirement to go down that medical route. The other thing, of course, is that the medicalisation of the process is, again, quite arbitrary. Not all trans people will have a desire to medically transition, so that requirement to go down any sort of medicalised process does not fit in with our experiences. It can cause stigma and can be a little bit dehumanising to require us to be diagnosed with a mental health condition, for instance, in order to obtain that certificate. Thank you very much for that. I take the opportunity to reinforce your point from earlier. Bruce, have you got any thoughts on that particular area? I think that other witnesses have covered this very well. Internationally, there is a clear move away from the pathogologicalisation of, in terms of it being a mental disorder by the World Health Organization and other international health bodies, allied with strong calls from the international human rights bodies on the need for reform as well. Again, the work of the UN independent expert on protection against violence based on sexual orientation and gender identity goes into this in detail. Again, at the Council of Europe level, strong recommendations to Governments to take this approach. I think that a growing consensus on this to the extent that the margin of appreciation allowed, the discretion allowed to take the medicalised approach is certainly narrowing, so that is very much the direction to travel on. It is very supportive of Scotland following that international trend and call from international human rights bodies. Thanks for that, Bruce. The second area that I have convener is about the provision for it to be a criminal offence to make a false statutory declaration or application. In Bruce, I will come to you firstly this time because you talked about in your open remarks about your worry about the impact that it could have, particularly on 16 and 17-year-olds, where your role is coming from. I wonder if you can expand on that and let me know what your concerns are. I noticed in a previous answer that you talked about in another context, albeit the Age of Criminal Responsibility Bill, which I was a member of this committee that took that through as well. Given where I think that the country is perhaps trying to go in terms of the criminalisation of children, where do you think that that provision fits in with that? Now you are really challenging me on keeping to the instruction to be brief because as you are very well aware and members of the former committee looking at this end, and I hope members of the current committee are very well aware of my position on the criminalisation of children and the fact that we criminalise children at 12 to years below the international minimum set by the UN and the Council of Europe is a breach of our obligations and it has serious impacts on individuals and sends a worrying message. The fact that we imprison children, often with tragic consequences, really stands out as significant breaches of our commitment to children and young people. There is a risk here by including the criminal penalty for making a false statutory declaration that children will be unnecessarily criminalised. The children's rights and wellbeing impact assessment does not evidence any assessment at all of the potential negative impact on that. There does not seem to be any consideration of the fact that children are entitled to extra protection set out in article 40 of the Convention on the Rights of the Child, which the committee has recently issued a comprehensive guidance on through a general comment. It would really be for the Government to show why it was necessary to criminalise children in those circumstances and they have not done that. I understand that others have pointed to that as a safeguard and underline the importance of the decision and seen as a protective measure against abuse. However, if that is to apply to children, I would like to see an explanation in terms of what alternate measures that the Government has explored to achieve the same of safeguarding against abuse and in terms of looking at what other approaches to fulfil that legitimate aim is. As you have said, this is a much wider discussion around the age-income responsibility and imprisonment of children. I really would ask the committee to address that as a matter of urgency, but I recognise that the context of this evidence session probably is not the place for that wider discussion. Thanks, Bruce, and thanks for being as brief as you can there in an area that I know personally you are very, very passionate about. Ellie, if I could come to yourself on this question as well, I suppose that you could answer it in two parts, if you are able. In terms of the criminal offence, if you could look at it in terms of the 16 to 18-year-olds that you might represent, as Bruce has done, have you got any concerns there? In terms of the wider implications over 18s, if you like, I know that your organisation will also represent that. We would oppose the creation of a new criminal offence on that. That would be for pretty much the same reasons for 16 to 18 and over 18s, but the implications are potentially stronger for 16 and 17-year-olds. At the moment, it is already an offence to make a false statutory declaration under the Criminal Law Consolidation, Scotland Act 1995. Adding a new criminal offence to that would probably act as a bit of a deterrent to trans people who would want to apply for a gender recognition certificate and potentially put people off applying who otherwise would. It can be quite a scary time already coming out as trans, because, as I said earlier, mental health conditions and anxiety and things like that can come up and having that additional offence could really worry people. The other thing that we should acknowledge is that it is fair to say that one of the main criticisms of the bill as it currently stands is the lack of recognition for non-binary people. That is something that we would certainly hope to see improved over the coming years. As it stands and as the bill currently stands, non-binary people would not be able to be recognised as non-binary by going through the gender recognition certificate process. However, some non-binary people might want to still go through that gender recognition certificate process because they feel that their gender aligns more closely to one of the two binary genders. There would be a real concern that having that offence of making a false declaration would inadvertently criminalise some non-binary people who would potentially be getting a gender recognition certificate to align them more closely with one of the binary genders that does not necessarily match their identity but more closely aligns with it. Finally, the other part to this is that we have to acknowledge some of the hostility around this current debate, around trans people and around this bill and the fact that trans people still face a really quite horrific amount of transphobia in society. There may be malicious individuals or groups who would potentially misuse that clause to make false accusations or allegations to cause harassment. Again, I would really strongly oppose that bill. I think that, like I say, that is for anyone regardless of age. A lot of those impacts that I have just described there will potentially be felt even more strongly for 16 and 17-year-olds, particularly around that fear and that deterrent around going through the process. Just a quick follow-up to that. I appreciate that response, but I think that you did touch on it yourself. There is, while there is a great deal of support for the bill and there is also a great deal of worry about the bill as well, which the committee is obviously hearing about. I wanted to put it to you, but the committee is really keen, as a whole, that we bring in legislation that makes it as easy as possible for people to live the life that they can, that they want. Sorry, but in terms of the criminal offence, do you not feel that it provides some reassurance to those that are perhaps opposed to the bill about some of the concerns that have been raised? We have heard from you earlier and other panellists who have told us that it is very unlikely that the committee that applies for a first certificate is going to have already been living. It has transferred quite some time, perhaps. It is already the decision that it took a long time ago. Do you not feel that having a criminal offence, if somebody makes a false declaration, provides some reassurance to those who have perhaps got concerns about the bill? As I say, making a false declaration would already be a criminal offence under the act that I mentioned earlier. I would hope that that would reassure those individuals with concerns. I do not think that a further criminal offence would be necessary. It would not make any real significant difference in terms of whether or not something is illegal or not. What it would create a difference in is that perception. I think that fear and that deterrent for trans people would put some people off applying for it. It would be an additional barrier, despite the fact that it would not make any difference in terms of the actual criminalisation of making a false declaration. I would hope that those people would be reassured by the fact that it is already criminalised. However, if we add an additional law on top of that, particularly the issues that I raised around non-binary people, for instance, it would be much more likely to be targeted by such a law. There is a provision in the bill for a person with interest to seek to challenge a GRC, and I ask a sheriff to revoke a GRC. What is the take on that? Is it something that you support? Is it something that gives you concerns? I will come to Bruce. We have some concerns around that, because it could potentially be used with malice intent, if there are a variety of reasons. There is a lot of interest in the bill. A trans person could come out and obtain a gender recognition certificate and, if someone who could be defined as a person with interests opposed that for any variety of reasons, that could potentially create a really hostile and dangerous environment for that trans person. It is really important that the approach that we are taking here is focused on the trans person themselves. It is also really important for us to acknowledge again what the bill actually does and what having a gender recognition certificate does. The main thing that it does is to make administrative tasks around making applications and things like that a lot easier. It can change how you are recorded after you have passed away on your death certificate. Those are issues that will only affect the trans person themselves in terms of the one other thing that it does, which is around marriage certificates and how people are recorded after getting married. That is the only instance in which that might affect someone else. In those instances, we would support that people should be able to divorce or separate for any reason and that revoking someone's gender recognition certificate would not be the solution there. If someone was unhappy with the fact that their partner had changed their legal gender, it would be divorce. I do not think that there is any reason why that would be something that we would support. Thanks, Ellie. That is helpful. Bruce, can I come to you? You have talked about, or in submission, a potential concern around this provision for care experience to young people. Can you say a little more about that? I will be really focused here in terms of concerned that the children's rights and wellbeing impact assessment accompanying the bill does not explicitly consider the situation of care experience to children and young people who may be legally looked after. That legal status puts in place additional obligations on the state and corporate parenting throughout childhood and into early adulthood. There are questions in practical terms about who would have that ability as a person with an interest, because there is potential that that could be local authority staff involved in the care of a care-experienced young person. More details are needed on that specific concern in relation to care-experienced young people and the potential to perhaps have a much larger pool of those that would be captured within the definition of a person with an interest. Thanks, that is helpful. Pam, do you want to comment on one final question? I do, please. Thank you, convener. The questions that I have are kinder related and they are on the international experience that you have shared. Bruce, I know that you have mentioned briefly some of the international experience that you have. Could you set out what your understanding is of how self-declaration has worked in other countries and how the impact it has had on the rights of children and young people, either positive or negative? Could you also talk briefly about the way that you said earlier that human rights gives a mechanism to balance the rights when there is an interplay between two groups of rights? Could you talk about the international experience on that and how that may have been resolved elsewhere? Thank you. Shall I go first, then? Please. Yep, and to do that briefly. We have been in contact with a number of onwards persons on this. This is not an issue that everyone has worked on, but particularly we have had good discussions with colleagues in Norway and Ireland, and each of these jurisdictions is legislated to provide legal gender recognition for under-18s. Looking at the evidence and research that they have done on it, we are taking a very similar position to that of the ombudsman in Ireland, which is in simple terms that 16 and 17-year-olds should be enabled to apply for gender recognition in the same way as those aged over 18, but a strong focus on making sure that suitable support services are available for those children under-18 and the broader issue around support for those younger children is not included in the proposals. It goes back to gender identity being at the core of a person's dignity and having to be able to engage with those matters in a really safe environment. The ombudsman for children's office in Ireland has undertaken extensive work on the issue. They have provided written evidence to a number of consultations that are taking back many years. The committee may wish to seek their view directly on that, because I would say that they probably have the best evidence of experience and process and direction of travel. The Norwegian ombudsman's office has also provided us a summary of their work in relation to gender recognition. They are very positive about the right benefits for including those over-16s without parental consent. Again, that is a feature of some parts of the Norwegian system, which is based on the fact that the age of medical and sexual maturity in Norway is 16. In Norway, for children under the age of 16, the ombudsman is actually arguing that they should be included in the same possibility based on the legal framework, the rights-based framework that I set out earlier. I am now looking at recognition for the six-to-sixteen age group in terms of what parental consent would be involved in that. I think that, more broadly, that speaks to the fact that this is an evolving area, and there needs to be on-going research. There needs to be close and on-going monitoring, and at the heart of that needs to be the lived experience of young trans people, but also the experience of other children as well, and linked to the expert research that is going on. Again, we are seeing that in other parts of the UK as well. I think that it is important that we recognise that there are challenges here, there are evidence gaps here, and this is going to be something that we will need to make sure that we continue to gather evidence, that we continue to monitor, and that we are open and mature enough to be able to challenge ourselves in terms of where we go next and how to further ensure that we are respecting, protecting and fulfilling rights. Again, there is a risk of upsetting, convener. I need to say that, in Scotland, the bill that was passed by the Scottish Parliament last year to incorporate the Convention on the Rights of the Child, which is still not enforced seven and a half months after the Supreme Court judgment, and I note that there is a ministerial statement this afternoon on it, and I think that it is absolutely essential that, at that statement, we see some clarity and progress very much looking forward to hearing that, because that cuts right to the heart of this. We need to put children's voices, experience and rights at the heart of decision-making, and we need to recognise that, in evolving areas of rights, there is always going to be more questions to ask. Okay, thank you. That concludes our questions. Thanks very much to Ellie Ann to Bruce for your evidence, and we will now suspend briefly to change witnesses. I welcome to our meeting our second panel of witnesses, Hugh Torrance, executive director of Leap Sports Scotland and Malcolm Dingwall-Smith, strategic partnership manager from Sports Scotland. You are both very welcome. I invite our witnesses to make short opening statements starting with Hugh Torrance, please. Thank you very much, committee, for inviting me here this morning. When the Agenda Recognition Act 2004 was being drafted, there was specific and considered consultation on the topic of sport, with the proposal of a specific exemption for sports competition. This exemption would mean that sports bodies would be able to make decisions about the inclusion or exclusion of transgender people, regardless of their legal gender recognition. In other words, that would mean that, if the sports governing body assessed that as appropriate for that sport, transgender people could be restricted from participating in competitions within that sport. When the act was introduced, it therefore included section 19, which enabled that exemption. That allowed sports governing bodies to create and implement those policies, which then restricted access to transgender people in sport. When sports bodies enacted those restrictions, it did not matter how someone identified or whether they had a gender recognition certificate or not. It was clearly the intention of lawmakers to recognise that such restrictions were necessary and to ensure a legal mechanism for that. Section 19 of the Agenda Recognition Act was repealed with the introduction of the Equality Act in 2010. The process of drafting the Equality Act also specifically looked at sport and considered it necessary to ensure for a continuation of that specific exemption for sports competitions, irrespective of the provisions of the Equality Act with regard to the protected characteristic of gender reassignment. Those provisions were incorporated as section 195 of the Equality Act as it became. By doing that, it directly and clearly addressed concerns that the Equality Act could in any way override the ability of sports governing bodies to restrict transgender people. Again, that means that if a sports body enacts those restrictions, then it does not matter how someone identifies or whether they have a gender recognition certificate or not. It was clearly the intention of lawmakers to recognise that the continuation of those restrictions on transgender people was necessary and to ensure a continued legal mechanism for that. It is also the case that gender recognition certificates are not used in sports eligibility processes, regardless of whether section 195 of the Equality Act is being used or not. As it currently stands, the exclusion is described still stand, enabled by section 195 of the Equality Act 2010, which continues to apply. None of the current gender recognition reform proposals change anything in the Equality Act, which is not up for review. That trans people's participation in sport has received such specific and detailed attention throughout the whole process of the creation of the Gender Recognition Act in the first place, and then the Equality Act in 2010 demonstrates how important this issue has been seen and how clear the intention of lawmakers in this area has been. It is therefore our conclusion that the proposals in this new bill will not change the situation of trans people's participation in sport and that the practice of sport will not be affected by any of the proposals in this new bill. Those campaigning against gender recognition reform continue to raise sport frequently, despite many reassurances from sports bodies and from LGBTQQ plus organisations that the proposals do not change the legal position in relation to sport. As to the bill more widely, Leap Sports is supportive of the current proposals on the basis of the significant improvements that we believe that they will make to the lives and experiences of trans people in Scotland. I look forward to answering any of your questions. Thank you for inviting Sport Scotland to give evidence today. As the national agency for sport, our vision is of an act of Scotland where everyone benefits from sport. We have a clear commitment to inclusion underpinning everything that we do. Legislative provision currently exists to allow sports bodies to place restrictions on trans people participating in sport in certain specified circumstances, if that is necessary to uphold fair competition or the safety of competitors. Those provisions are set out in section 195 of the Equality Act and will not be impacted by the gender recognition reform bill. Therefore, it is our view that the bill in its current form would not impact significantly on sport. Looking briefly beyond the provisions of the draft bill at transgender inclusion and domestic sport generally, we want sport to be a place where everyone can be themselves, where everyone can take part and where everyone is treated with kindness, dignity and respect. We recognise that there are still too many barriers to transgender people participating in sport. We also recognise that sport at every level required more practical advice and support to maximise opportunities for inclusion and accessibility. With that in mind, we came together with the other home country sports councils to develop new guidance for transgender inclusion and domestic sport. Following extensive consultation and review of the evidence base, our guidance concludes that retained physical differences mean that it will not always be possible to balance transgender inclusion, competitive fairness and participants' safety. We also concluded that there can be no one-size-fits-all approach across all sports. We are now encouraging and supporting Scottish governing bodies to use the guidance to develop sport-specific policies. Our recommendations encourage our national governing bodies to think in innovative and creative ways to ensure that nobody is left out. We now want to see meaningful and respectful consultation in developing these sport-specific approaches, which we hope will facilitate increased transgender participation and help sport to become more inclusive and diverse. Thank you very much. We now move to questions starting with Pam Goswll, please. Thank you, convener. Thank you, panel, for your opening statements. Hugh, you've touched a little bit on this, but just to go into a little bit more depth, how do you see the self-id policies currently work across sports from grass-roots to competitive elite levels? What evidence base is there for the impact of testering on the performance? Could you repeat the second part again, Pam? Sorry. Is what evidence base is there an impact on testering on the performance? I think that it's really important to start off by clarifying that there are already many sports who have regulation policies that are enabled by section 195 of the Equality Act, so it's not the case at the moment that a trans person can self-identify into any sport at any given point. This means that taking part in sport for many trans people already involves interpreting and adhering to those eligibility guidelines before being able to play and is one of the reasons why Malcolm reference the poor participation rates in sport and physical activity for trans people. Because the Equality Act is not up for review and there are no moves for it to be, then this situation is highly unlikely to change. I think that, in relation to the kind of second part of your question, forgive me a second just to find my notes here, the vast majority of trans people and folks in our network have been taking part in sport for many years and have been doing so without the need for agenda recognition certificate and being doing so in a way that has been welcomed by the participants and team members that they have. We see that happening all around Scotland on a week-to-week day-to-day basis and we see that the majority of people are very supportive of that situation happening. We do recognise the wider concerns there that there are, but we do also recognise that there are many, many people who are very supportive when it comes to participation in grassroots sport. Am I right to think that your question was around testosterone levels? As part of the consultation that was done across the four home country sports councils, we looked at the scientific evidence that is available. Scientific evidence in this area does continue to emerge and it is a moving picture but at the current time we believe that the emerging evidence does not support the view that testosterone depression for 12 months will achieve parity of strength stamina and physique for transgender women compared with females. As a result, that is the rationale for our position and the guidance that you can't necessarily, at all times, balance safety, inclusion and competitive fairness. I thank you both for joining us this morning. Can you describe some of the issues that are faced by different sports that do try to balance trans-inclusion with fairness and safety? What are the things that they have to wrangle with? How is it that different sports come to the decisions that they do? Malcolm, if I could start with you and then come to you. I mean, effectively, there is a concern that allowing transgender, particularly transgender women to compete in female sport creates an unlevel playing field as a result of those retained physical differences. It had been hoped by a lot of people in sport that the use of testosterone depression would provide a mechanism for levelling up that playing field and allowing people to compete on the same basis. Unfortunately, that is not where the evidence appears to be at this time. As a result, particularly at the higher level, that has been the policy that a lot of federations have used around testosterone levels and testosterone suppressant. What we are working with sports now to do is to look at their policies, to look at the structures of their sport and say that they are not making framework to ask questions like where is gender-affected the nature of the sport, where do they want to put the emphasis on inclusion, where do they want to put the emphasis on competitive fairness. That might be different within a sport, so it is not necessarily the case that sports would adopt a one-size approach, a one-policy approach across the whole sport. You might take a different policy at grass-roots community club level to the national championships, for example. We are also encouraging sports to think about other forms of their sport that they might wish to introduce or that they might already exist that can be put alongside those other forms, the more traditional forms of the sport, to provide opportunities for everyone to compete. Just to add to what Malcoms said, I think that against that backdrop of change at the moment, there is quite a number of sports bodies that are currently consulting with trans people around what inclusion and fairness might look like for our community moving forward. It is important to recognise that sports governing bodies have been working with those issues for many years, and many of them have found very successful ways to improve inclusion both at grass-roots level and, indeed, throughout the competitive sports pathway. Whilst there is discussion going on around the emerging scientific evidence, the practice of trans people continuing to access and play sport continues, and the consultation around that continues. I am keen to explore a bit more about what happens now in relation to agenda, recognition certificate and trans people's access to sport. Can you tell us about the use of a gender recognition certificate in any determination as to whether or not somebody is able to participate in a given sport? What happens now, and what do you think would happen in the future if the changes were to go through after they were made? As it currently stands at the moment, gender recognition certificates are not used for any part of the process of either participating in sport, applying to take part in sport or, indeed, evidencing anything in relation to your participation in sport. At the moment, none of that happens, and, moving forward, there is nothing about the proposals, which would change that in any way. What are the sorts of factors that are considered when a trans person is looking to participate in a particular sport? What is considered by the sport's governing body? Usually, and the way that it stands at the moment, if you are participating, it starts off with a self-declaration around your gender, and that is how you would identify which category that person would enter. There is no point in the process thereafter that a gender recognition certificate would be requested in order to verify that in any way. Other criteria beyond a gender recognition certificate would be whatever that particular sport's body had outlined as its particular criteria, and that might, under some of the current regulations, as Malcolm has pointed out, include documentation around testosterone levels or physician, but not related to gender recognition certificates themselves. I echo that the gender recognition certificate is not used in general by sports as part of their process. I am not aware of any sport that is using it or would intend to use it under the new circumstances. Just to use absolutely right the self-declaration process would be a declaration that the person is in line with the sports policy. It is slightly different to a self-id process, in that sense, and I will provide clarity on that. Would it be possible just to tell us your understanding of what that difference is? When I say a self-declaration process, the declaration would be that it is in line with the policy of the sport, as opposed to a self-id process. If the sport policy was a self-id process, it would be the same thing. For example, if transgender people were not permitted to participate in the sport, in the gender that aligns with their identity, they would be making that statement within the policy. It is about section 195 of the equality act, and I know that you both mentioned it briefly. Do you think that the bill will impact on that section specifically for the record? We cannot see anywhere that will impact section 195 of the equality act. Understanding is that it does not impact on section 195 of the equality act. Malcolm, in your opening statement, you talked about that it might not always be able to balance and that you needed creative ways and that they should be meaningful and respectful. Sport Scotland jointly with the UK sporting councils issued guidance last year, and they found that there were very two polarising issues with reference to that. That there was on one side that the trans people should be included in sport, and that there should not be any restriction. The other saw that trans inclusion should be subject to regulation to ensure fair sporting competition. The UK sporting councils themselves advised that there should be some kind of balance, but they also indicated that bodies should define their own rules of using a framework to interpret some of the guidance, and that that would help to support outcomes for each sport. Specifically, when we are looking at bodies in Scotland being supported, what balance is there to ensure that trans inclusion in sport is given the fairness and the safety that is required? To be clear, the two polarising viewpoints that were referred to were viewpoints that came out of the consultation that people were expressing during the consultation. In terms of how sports will look at that, it will vary sport by sport. We are encouraging sports to work through the process. Sports have to consider things like how gender-affected they are and what ways they are gender-affected, and to make decisions at different elements of the sport, potentially at different levels of the sport, whether they want to take a different approach in that balance, as well as considering whether there are different forms of the sport. Many governing bodies will both cover different disciplines but will also cover modified versions of sports in various forms that have emerged over a number of years, which are not necessarily just about promoting trans inclusion but generally about improving inclusion overall. On the safety element, the safety element is not necessarily a small number of sports, but it is safety on the field of play around particularly collision and combat sports, where that difference in physique can potentially create safety issues that need to be considered, and that has to be done on a sport-by-sport basis, depending on the scientific evidence available. Do you have any comments on how that needs to be balanced? Malcolm has given some examples of different types of sport that may have a different attitude or may have to involve a different way because of the element of the sport that they may have or the competition that they may be involved in. I would reiterate first of all that there are many sports who are already managing to make that balance very successfully and have done that for quite some time. Some sports make decisions about restrictions based upon what level of competition that might be, and other sports might make those kinds of decisions based on things such as access to clubs and facilities and so on. I think that our practice experience is that the kind of queries that we get through training, advocacy and general queries are significantly more likely to have questions about how to support trans people to get the best out of sport and to get the best out of their sport rather than having particular challenges around achieving that balance per se. Although I think that we are focusing today on quite a lot of the legal mechanisms around the restriction of trans people in sport, I might just underline how important it is to also see access to sport and physical activity as a rights and fairness issue for trans people as well. I would also like to remember that trans people are already playing sport and have been, this is not a new or a recent thing. That balance being struck is definitely something that we continue to engage with and support sports bodies on, and it has been on going for many years. Fulton MacGregor, please. Thanks, convener, and it's broadly following up Alexander's line of questioning there. You talked about the consultation for the joint guidance that was published and the responses that came into that. I wonder if you can talk about what sort of response you've had since the guidance has been published? Has it been on the same trends as the two, the two chains of thought that you've already spoke about, or have you had further responses that have given you closer consideration? I think that, unsurprisingly, the guidance doesn't make everyone happy. It takes a view that sports will have to come up and work on their own positions, which is also not a final statement on what the outcomes will be on a sport-by-sport basis. We were never expecting everyone to be happy that it sits on either side of the debate, if you like, to simplify things. What I think that we've been really pleased with is the response from the governing bodies of sport. They are probably our key stakeholder in this, they are who the guidance is designed to support. What we're seeing is sports being really willing to engage in thinking about this issue and thinking about how they can open up their sport and make it more accessible to transgender people, not just around the guidance but also, I think, it's important to see that there's the guidance around eligibility. Once sports are comfortable that they can come to a decision on that, that really helps to look at things like culture around the sport that are potentially bigger barriers to transgender participation than the actual eligibility regulations themselves. Do you find that this is something that sports bodies for different sports across the country come to you to seek advice on? Yes, absolutely. The part of the reason that we looked at it—there was previous home country's guidance, the date from 2015, part of the reason for updating the guidance was because sports were speaking to us about this issue and saying that they needed more practical guidance to support them to make decisions. Do you feel that it's something that has increased as there's been a debate around the issue? Or is it something that's always—you've always had your advice on? Yes, I would agree with Hugh that it's something that's not new to sport, it's been an issue for a number of years, something that sports have to consider. Probably Hugh, from a leapsport point of view, is one of the bodies that sports would go to when they have questions around this. It might be a better place to say whether the level of inquiries they're getting on specific issues, but on the overall, sports know that they need a policy in place around this, that they need to come to some kind of clear decisions on it, and then they need to work to improve accessibility, and that's not really changed over the years. I would certainly, first of all, start off by saying that there has definitely been an uptick in interest in this topic across the time of the last couple of years, alongside the time that this particular bill has been consulted on. I think that some of the reason for that is that there is some continued and often quite deliberately misleading campaigning against trans people's participation in sport, and that's just continued throughout the kind of lengthy delays that we've had as this bill has progressed. I think that it's also fair to say that the new guidance, as Malcolm described, looks at two sides of a debate, and that's not a position that we've always recognised in relation to sport. We work with sports bodies somewhere in the middle of all of that, and this topic is usually presented as either trans people currently have unrestricted access to all participation categories in sport and therefore it must stop, or that those current proposals will create a position where trans people will have unrestricted access to all categories in sport. Both of those things are clearly and demonstrably untrue. I think that in relation to the release of the new guidance, we see the vast majority of trans people and athletes who haven't welcomed the guidance. They believe that the approach that it's taken and the tone that it takes is hostile to their inclusion in sport. To some degree that's not necessarily just about the guidance itself, it's about the context and the current time in which that guidance has emerged throughout this process of consultation on the bill. Specific concerns that trans people have about that would lead to an increase in unwanted attention, hostility and harassment in sport, and fears that some of the sport's bodies that they previously described as having their back when it comes to participation in sport will be coming under increased pressure to review their policies and to become more restrictive in the process of doing so. Sadly, from an advocacy point of view, I would have to say that we are already seeing evidence that upholds some of those concerns. I think that there are some of those immediate concerns and also lots of longer-term impacts that we need to consider in relation to how the guidance is implemented within sport. Yeah, thanks for that. Probably just as a remark and not anything to do with this legislation, because I think that you've been quite clear that it doesn't really impact in sport, but it does sound like from what you've said there that trans people in sport have quite a unpredictable future, if you like, because all it would take is a change in organisation structure or people at the top of an organisation or standing orders or whatever for the best significant change of their participation. That's more a remark than anything else, convener. You've given really full and comprehensive answers to a lot of the questions already this morning, but I'd really like to ask you, picking up on some of the answers you've given in what do you consult with experts on other third sector organisations when developing and shaping your policy in regards to how you spoke about performance measures and how testosterone levels isn't perhaps the way to go. Some cisgendered women take testosterone for medical reasons, so those kinds of measures aren't pertinent to what you're looking at. What medical experts and third sector organisations do you consult with in your bodies? In terms of the production of the guidance, we consulted with around 300 people from about 175 organisations around the world, as well as individual participants in sport. We looked at scientific evidence at peer reviewed papers, looking at what the published evidence that is in place says. We consulted with or invited into the consultation organisations that held dramatically different views on transgender participation in sport, trying to get as wide a range of views as possible into that. That included LGBT representative organisations, it included organisations that have raised concerns about transgender participation in sport. As a charitable organisation working in the advocacy space, we don't conduct any particular research activities ourselves in relation to the science of sport, but we regularly work with sports governing bodies, both within Scotland and the international field. At a Scotland level, it has been important for us since the production of the out for sport research back in 2012 to come together as a sector around the sport's topic, given some of the particular areas of interest that it has brought up. That has led to the creation of the national LGBTI sports group, which meets on a quarterly basis and has Sports Scotland, many of the other sports governing bodies, Scottish Government ourselves, and some of the other equality organisations. Through that group, we look at emerging evidence, guidance, practice and so on, as well as sharing good practice across the sector. That's great. Thank you very much. As I've said, you have been very full and comprehensive and perhaps out the scope of what we really are scrutinising here today. Just to reiterate and re-emphasise in terms of the bill that we're looking at right now and the simplification process for a GRC certificate, what or if any impact will there be on the sports organisations? Again, just to reiterate from our point of view, we've been through this in some detail. We've consulted with both sports bodies and trans people and haven't been able to find any direct impacts that we think that these reforms will have on sport in a very specific way around the current proposals. Sports Scotland shares that analysis that there won't be any impact of the bill on sport and therefore it doesn't take a position on any of the features of the bill. For that reason, although we regularly provide evidence and submissions to calls for evidence from committees, in this case we didn't because we were so clear that there was no impact on sport. I'd like to go back to a little bit about how it affects other countries. I'm interested a bit more on cross-border effects that the reform of the GRC could have on participation in sporting competitions. For example, do you expect that moving to a system of self-declaration would conflict with the guidance set out in other countries, either in the United Kingdom or abroad? How do you see working around that? I know that you've talked a lot about Scotland here, but how do you see working in the UK and with other countries? Our view would be the same as in Scotland that GRC certificates are not used as part of the process that sports undertake, either at the Scottish level or the UK level, and therefore we don't see any impact on that based on a cross-border concern. I support that position. As it currently stands in Scotland, any of the eligibility criteria in the player pathway that would take someone from national level competition to international level is done through the sport-specific criteria, which is enabled by section 195 of the Equality Act and not in any way by the Gender Recognition Act. I have covered everything that I was intended to, but if I could have another question, that would be great. I wonder if you could tell us a little bit about trans people's participation in sport, why it's important, and how they interact right now with other women and other men in sport as well. Thank you for the question, Pam. Sport is not only for the privileged. The Covid-19 pandemic has really sharply brought into focus the importance of sport and physical activity to our mental health and our wellbeing. That's absolutely no different for trans people, but it can be a really important tool for trans people to be able to access sport and physical activity in the process of preparing for a transition or indeed going through a transition. Everything from potentially preparing your body for surgery to using sport as a way to achieve that body that you want to have. It's a really important tool for all of us in that regard, but particularly so for trans people for that particular reason. In relation to how trans people interact with men and women on their teams as it currently stands, we find on the whole that sports clubs and people within those sports clubs are incredibly supportive of their teammates. In actual fact, in very many cases, we'll go that extra length to advocate on their behalf or stand up for the inclusion of someone within their team. That's something that we work regularly with and that we see not only on pride month or indeed on particular days of the year but right throughout the year. Whilst again, I would say that we do recognise that there are some people with concerns, the vast majority of people take that very supportive view. Just very briefly, because our consultation has been touched on a couple of times, it's really important to say that our consultation, there was absolutely widespread support for the view that sports should be accessible for all, including to transgender people. The questions that emerged or the concerns that emerged from some people were about how that was achieved and not whether it should be achieved. As I said earlier, there's a lot of work to do still around culture and other barriers that aren't about eligibility criteria, as well as thinking about those eligibility criteria, but making sport accessible to all is certainly something that Sports Scotland is absolutely committed to. That concludes the questions for this morning. Huge thanks to Hugh and to Malcolm. That concludes the public part of our meeting. We'll now move into private for the final items of our agenda.