Chamber and committees

Thank you for your response, cabinet secretary, but I want to clarify what you said about emergency situations. If I were, say, knocked down by a car and the doctor who dealt with me at the time was male rather than female, our religions would allow them to operate on me. However, our religion does not allow that to happen when you walk into a doctor’s surgery, because you have a choice and you can ask. Emergency situations are very different.

It is good to hear that you have spoken to these organisations. The same organisations came to me, too; they could not tell you these things, because they were scared of the Parliament, of the Scottish Government and of this bill coming out. I come from that background and I know that the organisations have voiced such concerns; indeed, we had an organisation that came in here in private to voice them, too. Good on it for doing so, but others have been so scared. Just a few days ago, I was speaking to people for the consultation on my proposed member’s bill, and they said, “Thank God you have phoned us and are speaking to us, because we feel that, with the legislation that is going through now, our voices have not been heard.” Islamic scholars and major organisations have come forward, too.

I am simply putting on record what those organisations have said to me. Emergency situations are very different, and what I am asking for is a very different thing.

Can I say a few words, convener?

Cabinet secretary, I seek some clarification. As you know, I am a new MSP—which is something that I will probably keep saying over the five years of the session. From legislation comes policy and from policy comes guidance. I do not understand why it is not within your gift today to agree to work with us on this part of the legislation to ensure that it is watertight and that we are supporting every diverse community and not letting anyone down.

I want to be clear that, while I recognise that improvements to the gender recognition process would be beneficial for trans people, the proposed law is a let-down for women, girls, faith communities and children, who require the protection of the law. I believe that such a balance of interests comes from balanced, well-considered legislation. As it stands, the bill does not get that balance right.

My amendments 76, 80 and 81 seek to address concerns that a self-declaration model may exacerbate existing problems with section 22 of the 2004 act. Amendment 76 creates a requirement on Scottish ministers to

“prepare and publish a report on a review of the impact of this Act on patients where knowledge of the biological sex of a health professional carrying out a medical examination or treatment is required, including on religious grounds.”

Women of faith and faith groups have expressed concern that the proposed legislation could interfere with their religious beliefs. The debate has been polarised, however, and some Islamic scholars and organisations told me that they were too afraid to come to the committee. We should all be extremely disappointed: this Parliament is the people’s Parliament, but people did not feel comfortable expressing themselves here. Hence, today I am the voice for all women and girls.

For many religious women, particularly in the Islamic faith, it is religious law that they shall not let a man touch or see their body. Therefore, they feel more comfortable using the services of female general practitioners, carers and other medical professionals. We must ensure that the bill is truly compatible with those women’s religious rights.

It goes further than women of religion; it affects women and girls more broadly. In my region, parents and women have stopped me in the street, explaining how frightened they are for their children. A constituent of mine raised concerns about what the proposals would mean for an elderly woman in a care home—whether she could be guaranteed a female carer to wash and dress her. Those concerns stem from the expected increase in the number of GRC holders and the lack of clarity surrounding section 22 of the 2004 act.

No—I am fine now.

As I said previously, I recognise that improvements to the gender recognition process would be beneficial for trans people. However, my job here is to ensure that the bill, once enacted, is balanced. As it stands, the bill does not strike a balance and instead puts women, girls and vulnerable individuals in harm’s way.

Amendments 74 and 75 protect single-sex spaces. The amendments would require Scottish ministers to publish information on the impact of the legislation on single-sex spaces and services. Throughout this process, some of the concerns raised by stakeholders and witnesses on the issue have been met with accusations of scaremongering. The Scottish Government has repeatedly brushed off those concerns and suggested that there is no data to suggest that abuse of self-ID would take place as a result of the bill. However, there are legitimate concerns that the changes introduced by the bill would make it easier for predatory men to abuse the process.

Written evidence, including evidence from the Women’s Rights Network Scotland, has indicated that the absence of a medical diagnosis and a gender recognition panel, as well as the lowering of the waiting period from two years to three months, could lead to predators falsely claiming to be trans in order to gain access to single-sex spaces. That is particularly concerning for vulnerable individuals, such as women in domestic abuse shelters, women in prison, and young children. Those are concerns that we have heard time and time again throughout the process. If the Government really has the courage of its convictions and thinks that those concerns are not valid, it will allow the reviews to take place in order to provide some reassurance.

I will support amendment 110, which will allow for accurate reporting on sex. I will also support amendments 23, 24, 25, 101 and 151, which seek to provide more guidance and clarity—for the avoidance of doubt—on the interaction between the bill, when enacted, and the Equality Act 2010. I also support the Equality Act 2010 in its current form, including the existing definitions that it contains, and therefore I will support amendments 37, 104 and 152.

I really hope that today the cabinet secretary provides a response that will give some reassurance to the women, girls and parents out there who have expressed their concerns by contacting me directly, or in social media, in the media and at the rallies outside Parliament. I hope that she has listened in order to ensure that the bill, once enacted, is fair and balanced for all.

I hope that the cabinet secretary can demonstrate that she has, at the very least, listened to those concerns and that she will support my amendments. Although I do not believe that they alone will provide a safeguard, they would at least offer some reassurance that the impact of the bill on single-sex services and spaces will be reviewed.

You have said that there are practices in place under which a woman can ask for a female doctor, if they are available, and I must thank the NHS for going out of its way to accommodate the diversity of religions. However, can you clarify something for me, cabinet secretary? If my mum walked into a doctor’s surgery and did not know that the person was a biological man but saw a female—a trans female, obviously; I have to get that right—she would not ask. She just would not know. How do we protect the rights of trans people but balance that with the rights of people from religious backgrounds? How can you ask for something or how can someone provide something if you do not know anything?

No. That is protected under the Equality Act 2010. It is about the religion itself. I know this from the case of my own mother. Normally, when somebody goes into a healthcare setting, if we see in front of us a male or female doctor, we can ask to see the female doctor. If one is present at the time, fine; if not, an appointment may be arranged for the next day or the week after, which is acceptable. We are not asking for special attention; we are asking to carry on what goes on right now.

If there are more GRCs out there, how will we know that a trans person is a biological man? There will be more such people in our services and spaces. As of yet, no statistical modelling has been done to forecast the number of GRC applications that we can expect, which means that I have little confidence in the accuracy of the Scottish Government’s prediction of 250 to 300 applications per year. Either way, we know that the loosening of eligibility criteria will result in an influx of applications and a much larger group of GRC holders compared with now. Secondly, we know that service providers are already unclear as to what section 22 of the 2004 act means in practice. Therefore, if the Scottish Government truly wishes to make women with concerns feel safe and to ensure that their rights are respected—I refer here to amendments 80 and 81—I ask it to consider whether the criminal offence of disclosing someone’s status as a GRC holder remains proportionate and whether it considers that there should be further exceptions to section 22, in light of the bill’s provisions.

I am in favour of amendments 150 and 156, which seek to review the operation of section 22 of the 2004 act and the subsequent reporting requirement. Given the concerns that have been raised with me about the impact of the bill in areas such as health and justice, and on women and girls and children, I lend my support to amendments that seek to review the impact of the eventual act, such as amendments 1, 136, 143, 148, 144 and 155.

In addition, a concern for many parents is the decoupling of legal and medical aspects, so I support amendment 139, in the name of Sarah Boyack, and amendment 140, in the name of Rachael Hamilton, which seek to review gender identity healthcare services. I recognise the need for more medically sound professional care and shorter waiting times. I am also in favour of an impact assessment of the act, as outlined in amendment 146, and a review of the act, as outlined in amendment 145, and I would expect the review to be laid before Parliament.

I sincerely hope that the cabinet secretary will have the empathy and understanding to recognise that, given the new lax rules for obtaining a GRC, it would be unreasonable to suggest that the criminal offence of disclosing someone’s status as a GRC holder remains proportionate.

It is also the case that, as the number of GRC holders will rise substantially, that will, without expanding the exceptions under section 22 of the 2004 act, increase the likelihood that a woman will have a medical examination and the like carried out by a biological man. If possible, she should have a choice in that. I would like to hear how the cabinet secretary intends to work with us to address the concerns that women, including women of faith, and girls have raised.

We support amendments 147 and 149, because both offer the opportunity for more data collection.

With regard to amendment 147, we especially welcome data being collected on the number of gender recognition certificate applications that are received and the number that are rejected. Should a large number of such applications be rejected, it would be important to know why. We also welcome provisions on the number of applications that are received from prison, because assaults on female inmates by males pretending to be transgender have occurred elsewhere in the UK.

Amendment 147 would also allow us to analyse how the change in the law impacts on the overall number of gender recognition certificates that are granted. The Scottish Government has made estimates of the number of applications that will result from the change; the amendment would allow for those estimates to be measured against reality. I therefore hope that the Scottish Government welcomes amendment 147.

Amendment 149 calls for more data collection on trans healthcare. The waiting times in that respect are long, so it is important that we measure the impact of the legislation on them, especially as the bill opens the window to more people being eligible for a gender recognition certificate. The impact of the legislation needs to be measured for every affected group, and the amendment would help to achieve that.

I am happy to support all the amendments in this group. Amendments 45 and 48 add a new safeguard to the bill that would require a countersignatory process to accompany any new application for a gender recognition certificate, similar to that for applying for a passport.

Although the Scottish Conservatives will be supporting amendments 45 and 48, we make it clear that that safeguard is not enough. However, it is an improvement on the existing provision in the bill, which is why we will support the amendments.

I would prefer existing legal safeguards to be retained, as my colleagues have already set out. We should, in particular, keep the age at which one can apply for a GRC at 18, keep the period in which one must live in an acquired gender at two years, and retain the need for a medical diagnosis when applying for a GRC. However, Michael Marra’s amendments improve the bill as drafted, so I am content to support them.

Amendment 154 provides a concrete definition of what a statutory declaration would entail. I put it on record that I do not think that that is enough; applications should also be accompanied by an associated medical diagnosis and a longer period lived in the acquired gender should be required. However, given that the Scottish Government has failed to properly define what a statutory declaration entails, amendment 154 at least provides a definition that already exists in law and that has been used for some time: namely, that provided in the Statutory Declarations Act 1835. I hope that that will bring greater clarity to the bill, which is why I am happy to support amendment 154.