Prohibition of Intersex Genital Mutilation (Scotland) Act 2018 1

MODEL
SCOTTISH PARLIAMENT

Prohibition of Intersex Genital Mutilation (Scotland) Bill

SP Bill 42

(as at Stage 3)

An Act of the Scottish Parliament to make provision about intersex genital mutilation; and for
connected purposes.

1 Intersex persons
(1) An “intersex person” is a person who—
(a) has been diagnosed as suffering from androgen insensitivity syndrome;
(b) has been diagnosed as suffering from congenital adrenal hyperplasia;
(c) has been diagnosed as suffering from Kleinfelter syndrome; or
(d) has sex characteristics which are not solely those typical for male persons or are not
solely those typical for female persons (including characteristics typical for neither
male nor female persons).
(2) For the purposes of subsection (1)(d), sex characteristics include—
(a) the form, structure, presence, or location of genitalia, gonads, or other sex organs;
(b) the presence, combination, or proportion of androgens, estrogens, progestogens, or
other sex hormones;
(c) the form, number, presence, or type of sex chromosomes.
(3) The Scottish Ministers may by regulations modify this section so as to—
(a) vary the definition of “intersex person” in subsection (1), or
(b) add, remove, or vary a definition of a sex characteristic in subsection (2).
(4) Regulations under this section are subject to the affirmative procedure.

2 Offence of intersex genital mutilation

(1) A person who performs an action mentioned in subsection (2) is guilty of an offence.
(2) Those actions are—
(a) a surgical operation which alters or removes existing sex organs, or constructs new
sex organs, done with a view to aligning the appearance of an intersex person or the
function of their sex organs with the appearance or function typical for a male or
female person;
(b) the administration of a substance or other treatment done with the same view; or
2 Prohibition of Intersex Genital Mutilation (Scotland) Act 2018

(c) otherwise mutilating the genitals of an intersex person.

(3) But no offence under subsection (1) is committed by an approved person who performs
an action mentioned in subsection (4).
(4) Those actions are—
(a) a surgical operation on another person which is necessary for that person’s physical
or mental health, or
(b) a surgical operation on another person who is in any stage of labour or has just given
birth, for purposes connected with the labour or birth.
(5) The following are, for the purposes of this Act, approved persons—
(a) in relation to an action falling within subsection (4)(a), a registered medical
practitioner;
(b) in relation to an action falling within subsection (4)(b), a registered medical
practitioner, a registered midwife, or a person undergoing a course of training with
a view to becoming such a practitioner or midwife.
(6) For the purposes of determining whether an operation is necessary for the mental health
of a person—
(a) where the person has legal capacity to consent on their own behalf to any surgical
or medical procedure or treatment, it is sufficient for the person to certify that the
operation is necessary for their mental health; and
(b) it is immaterial whether that or any other person believes the operation is required
as a matter of custom or ritual.

3 Modification of section 2
(1) The Scottish Ministers may by regulations modify section 2 so as to—
(a) add, remove, or vary an action listed in section 2(2),
(b) add or vary an action listed in section 2(4) and, in relation to that action, define
“approved persons”, or
(c) remove an action listed in section 2(4).
(2) Regulations under this section are subject to the affirmative procedure.

4 Application of the 2005 Act

Nothing in this Act or the Prohibition of Female Genital Mutilation (Scotland) Act 2005
prevents section 1 of that 2005 Act applying to an action performed on an intersex person
as it applies to an action performed on a female person.

5 Aiding and abetting intersex genital mutilation

(1) A person who aids, abets, counsels, procures, or incites—
(a) a person to commit an offence under section 2,
(b) another person to perform an action mentioned in section 2(2) to that person’s self,
or
(c) a person who is not a United Kingdom national or United Kingdom resident to do a
relevant act of genital mutilation outside the United Kingdom,
commits an offence.
(2) An act is a relevant act of genital mutilation if it would, if done by a United Kingdom
national or United Kingdom resident, constitute an offence under section 2.
Prohibition of Intersex Genital Mutilation (Scotland) Act 2018 3

(3) No offence under subsection (1)(c) is committed if the relevant act of genital mutilation—
(a) is an action mentioned in section 2(4); and
(b) is performed by a person who, in relation to the action, is an approved person or
provides services corresponding to those of an approved person.

6 Extension of sections 2 and 5 to extra-territorial acts

(1) Sections 2 and 5 extend to any act done outside the United Kingdom by a United Kingdom
national or United Kingdom resident.
(2) No offence under section 2 is committed by a person who—
(a) outside the United Kingdom, performs an action mentioned in section 2(4), and
(b) in relation to the action, provides services corresponding to those of an approved
person.
(3) If an offence under this Act is committed outside the United Kingdom—
(a) it may be treated as having been committed in any place in Scotland, and
(b) proceedings may be taken accordingly.

7 Penalty
A person guilty of an offence under this Act is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 20 years or
a fine (or both),
(b) on summary conviction, imprisonment for a term not exceeding 12 months or a fine
not exceeding the statutory maximum (or both).

8 United Kingdom nationals and residents

In this Act—
“United Kingdom national” is an individual who is—
(a) a British citizen, a British overseas territories citizen, a British National
(Overseas), or a British Overseas citizen;
(b) a person who under the British Nationality Act 1981 is a British subject; or
(c) a British protected person within the meaning of that Act;
“United Kingdom resident” is an individual who is habitually resident in the United
Kingdom.

9 Commencement
This Act comes into force on the day after Royal Assent.

10 Short title
The short title of this Act is the Prohibition of Intersex Genital Mutilation (Scotland) Act
2018.