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GRA reform: Trans people 'could be harassed under new criminal offence for false declaration'

Supporters of GRA reform gather outside the Scottish Parliament in September 2021. Pic: Iain Masterton/Alamy

GRA reform: Trans people 'could be harassed under new criminal offence for false declaration'

"Malicious individuals or groups" could use an anti-fraud rule to harass trans people under proposed reforms to gender recognition rules, MSPs have heard.

Creating a new criminal offence for making a false declaration of gender identity would also deter some trans people from using new self-identification rules, according to Ellie Gomersall, president-elect of the National Union of Students (NUS) Scotland.

Gomersall, the first trans person to hold the national role, told MSPs that such a move would create "new fear" and a "new deterrent" for trans people, or could be used by "malicious individuals or groups" who would "potentially misuse that clause to make false accusations or allegations, to cause harassment".

Holyrood's Equality, Human Rights and Civil Justice Committee is taking evidence on the proposed introductions of reforms that would make it easier for trans people to change their legal sex.

The Gender Recognition (Reform) Scotland Bill has cross-party support from all but the Scottish Conservatives.

Backers including LGBTQI+ charity Stonewall say it will make the process easier and cheaper for trans people, but opponents, including For Women Scotland, say it will put women and girls at risk by jeopardising provision of single-sex services.

Under the Scottish Government plans, trans people would have to make a "legally-binding declaration of intent to live permanently in their acquired gender".

Today committee member Fulton MacGregor asked whether the creation of a new criminal offence that would punish false declarations would "provide some reassurance to those who have perhaps got concerns about the bill".

Gomersall said such false declarations would already be an offence under the Criminal Law Consolidation Scotland Act 1995, going on: "Adding a new criminal offence to that, what that would do is it would probably act as a bit of a deterrent, actually, 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 it can be quite scary time already coming out as trans. 

"Your mental health conditions, and your anxiety and things like that can come up and having that additional offence could really worry people."

Gomersall also said the move could "inadvertantly criminalise" some non-binary people who "feel that their gender aligns more closely to one of the two binary genders".

The proposals do not currently make provision for non-binary people and, last week, Vic Valentine of the Scottish Trans Alliance told the committee that this is the aspect of the bill that "the whole of the trans community, including trans men and trans women, are most disappointed about".

Appearing today, Tory MSP Pam Gosal raised the issue of potential abuse of self-ID "by bad faith actors" and asked if some groups, such as sex offenders, should be excluded from the proposed change.

Gomersall said: "This bill won't have any impact on access to single sex spaces and, as such, I don't think that there's any category of person who would be excluded.

"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, meaning an already quite difficult to obtain gender recognition certificate, in order to do so. 

"People don't check birth certificates as you walk into a toilet to commit those crimes. They are crimes, they're already against the law, and so there wouldn't be any difference whether someone had a gender recognition certificate or not."

The committee also heard from Children and Young People's Commissioner Bruce Adamson, who said: "There's certainly a lot of discussion we should be having about strengthening protections against those individuals who are at risk but, rather than implying a whole category of people are a risk and restricting their rights, we need to look at how to strengthen the protections against those individuals who are at risk. 

"We certainly shouldn't be dismissing these concerns. Generally, we need to be discussed very openly and we have to be very careful to make sure that in ensuring the objectives of this bill, there aren't unintended consequences.

"But we also, as Ellie said, do need to be careful in framing these concerns that it doesn't lead us back to the very thing we're trying to address which is  further stigmatizing already a group already significantly at-risk in terms of their rights.

"Experts have looked at this in detail and felt that the concerns haven't been evidenced internationally that people would be using this in that way."

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