Meeting of the Parliament

Meeting date: Wednesday, December 14, 2022

Official Report 1126KB pdf

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Urgent Question

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For Women Scotland (Judicial Review)

To ask the Scottish Government what its response is to Lady Haldane’s opinion on the petition of For Women Scotland Ltd for judicial review.

We are pleased to note the outcome of that challenge, which is that the Scottish Government’s statutory guidance on the Gender Representation on Public Boards (Scotland) Act 2018 has been held to be lawful and the petition has been dismissed. However, as I am sure Rachael Hamilton will appreciate, these are live proceedings with the possibility of an appeal.

Throughout this debate, women’s organisations have repeatedly warned that the Gender Recognition Reform (Scotland) Bill could put at risk the protections that are set out in the Equality Act 2010, including those relating to single-sex spaces. Despite that, Scottish National Party ministers have said, over and over again, that those protections will not be affected.

Now, we have a court ruling that says that, from the perspective of the 2010 act, trans women are included in the legal definition of women. By next week, the Scottish Parliament could pass a self-identification law that could significantly speed up the process of obtaining a gender recognition certificate. That would make it substantially easier for violent men to abuse the process and target women in shelters for abused women and other protected places.

Does the cabinet secretary now accept that the Gender Recognition Reform (Scotland) Bill may impact the rights and protections for women and girls that exist under the Equality Act 2010? Does she agree that we must now pause the bill to consider the full implications of the court ruling?

The judicial review was not considering the Gender Recognition Reform (Scotland) Bill. The bill changes the process and requirements for obtaining a gender recognition certificate; it does not amend the legal effects of obtaining one, which are set out principally in section 9 of the Gender Recognition Act 2004. The effect of a GRC remains what it has been for the past 18 years: it enables people to change their birth certificate to be in line with their acquired gender. The bill makes no change to that effect. It also clearly does not modify the Equality Act 2010, which is now stated in the bill.

Lady Haldane’s ruling applies to GRCs as they are issued under the current United Kingdom-wide process and will apply equally to those issued in Scotland under the process that is set out in the bill, should Parliament agree to it. Even if the bill did not exist, the ruling would have been the same.

It is entirely in line and consistent with the position of the Equality and Human Rights Commission that the effect of a GRC is as I have laid out. I know that Rachael Hamilton sets a lot of store by what the Equality and Human Rights Commission says on such matters.

Exceptions in the Equality Act 2010 enable single-sex services to exclude trans people, or treat them less favourably, where that is a proportionate means of achieving a legitimate aim. Those exceptions still apply and can do so whether or not the person has a GRC. We support those exceptions and think that they provide important protections. The bill does not change them.

The SNP cannot close its ears to the dangers that the Gender Recognition Reform (Scotland) Bill presents. In just one week’s time, the Scottish Parliament could sleepwalk into passing a bill that would put women and girls at risk.

The bill is one of the most controversial pieces of legislation ever brought before the Parliament. It deserves to be fully scrutinised, not rushed through. Will the cabinet secretary tell me and the thousands of women across Scotland who are worried about the implications of the bill for them and their daughters why it is essential that it be passed before Christmas?

I say to Rachael Hamilton, who I know was not in the Parliament over the course of the consideration of the issues, that we have been considering the issues for six years now. I consider that to be quite a long time to have considered some of the principles behind the bill. There have been two full consultations on it and a lot of discussion and debate in the Parliament. The Equalities, Human Rights and Civil Justice Committee had, I think, 12 sessions looking at it.

At the end of the day, the Parliament has to come to a conclusion on the bill. However, on people being worried about it, that is why I set out in my original answer to Rachael Hamilton what the bill does and, importantly, what it does not do. It does not change any of the purpose and effect of a gender recognition certificate, which has been in place for nearly 20 years now. It does not change the protections and exceptions under the Equality Act 2010. Those remain the same.

Those are the reassurances that I would hope members of the Parliament would be able to communicate to anyone who asked them about the effect of the Gender Recognition Reform (Scotland) Bill.

The cabinet secretary will be aware that there are amendments for consideration next week that restate the provisions in the Equality Act 2010, including exclusions that can be applied in the delivery of single-sex spaces where it is proportionate to do so, and that require the Government to publish guidance on the impact of the operation of the Gender Recognition Reform (Scotland) Bill for public bodies and service providers in Scotland. Will the Government consider the position very carefully and ensure that services are not left to interpret the legislation by themselves?

Obviously, we will give, have given and are giving consideration to all the amendments that have been lodged. However, as Jackie Baillie is more than aware, for those reasons, at stage 2, we agreed to an amendment from one of her party’s members, Pam Duncan-Glancy, that, for the avoidance of doubt, we would have it on the face of the bill that nothing in the Equality Act 2010 changes. That is important.

I ask Jackie Baillie to reflect on the competence issues of our going beyond that. To select some parts of an act and not others is confusing in itself, but there is also the question of competence and challenge. I ask Jackie Baillie to reflect on some of the utterances that are coming from the United Kingdom Government about a willingness and a keenness to challenge the bill. I do not want to allow that to happen by including things in the bill that would make that easier. I ask the member to reflect on other occasions when that has been the case. Although I am sympathetic to what Jackie Baillie is trying to achieve, I ask her to reflect on that point.

The safety of women in our society is of paramount importance to my party, which is why we established a men’s violence commission only last month. The conflation of the issue of women’s safety and the provisions of the bill is sad, worrying and, at times, unhelpful. We have to uphold the concerns that people have, but we can, as a Parliament, express to them that the provisions in the bill that will make it easier to have the identity and gender of trans people in our communities recognised on the documents that we, as a state, require them to hold is of paramount importance because the GRA, unamended, is harming people every day.

In relation to the message around the debate and the consideration of stage 3 proceedings next week, does the cabinet secretary agree that we need to get into that issue? We need to point out things such as the fact that there are no single-sex spaces in our society that require the presentation of a GRC or a birth certificate—in fact, they are not valid forms of identification. Making it easier for people to have who they are recognised on the documents that they are required to hold will not put more women in harm’s way.

I agree with that. I cannot express and highlight enough the fact that those exceptions in the Equality Act 2010 are there for the occasions when it is important, for all the reasons that we understand, to exclude trans women—or trans men, for that matter—from the discrete services that are clearly laid out in the guidance on the 2010 act. The gender recognition bill changes none of that at all.

Finally, if we look at the evidence from other countries, we see that something like 250 million people live in countries that have a process of statutory declaration around gender recognition, and no evidence is emerging from those countries that there is systematic misuse or abuse of those systems. That is important reassurance. However, it is important that we try to discuss the bill in an atmosphere and a tone that addresses concerns but does not lead to a wider culture war, which we unfortunately see in some parts of social media, because that does not do anyone any good. We all have a leadership role in trying to avoid that.

That concludes the urgent question.