Chamber and committees

I really appreciate that answer. For the record, I did not have a strong view for or against that proposal at the time, and I do not have a strong view now. I simply note that it was quite controversial, although I take your point that things have moved on. Thank you for your answer.

I welcome the Scottish Prison Service’s review. It has consulted more widely, which I am pleased to see. However, I am not comfortable with the notion that that guidance is out for consultation when we as a Parliament are still being criticised for not having the guidance in the first place. I am uncomfortable with looking at the provisions in the bill while that is not in place. That is the central issue to be debated under this group of amendments.

Jackie Baillie has addressed the confusion, and Ruth Maguire asked a question about funders, for example. There is massive confusion, which I will address in some detail.

Under the current proposed system, it now appears to be quite impossible for organisations to legally distinguish between those who are born female and holders of a female GRC. The Government successfully argued the matter in court. That judgment may or may not be overturned in court. However, that has added to the confusion, particularly in relation to the phrase “legal sex”. That will undoubtedly lead to confusion among organisations that are left with the challenge of trying to interpret what that law means.

In its stage 2 briefing, the EHRC noted that the proposed reform will have

“significant implications for the operation of the Equality Act in Scotland”,

to the extent that

“The expansion to a larger group will have meaningful consequences in relation to the operation of those provisions”.

I do not think that members should dismiss that lightly—whatever they think of the reform overall, it will apply to a larger group of people. Let us be clear that the EHRC, which is the guardian of the 2010 act, is saying that that expansion will make a significant difference and that it

“will have meaningful consequences in relation to ... education in schools, sex discrimination (including equal pay between women and men), gender pay gap reporting, and measures to address disadvantages experienced by women.”

My contention is that the bill does not simply reform the 2004 act—of which I was a vocal supporter. I am still a vocal supporter of reform. I believe that the removal of huge elements of the process and the arrival at the framework, if you like, of a self-ID model will lead to some aspects of operation of the Equality Act 2010 needing to be considered.

It is a fair point that none of us is a practising day-to-day lawyer, but we are trying to achieve our best understanding of the judgment. I am saying what my understanding is, but I would like guidance from the Government. It has proposed the legislation, and I am trying to get guidance now rather than wait for that. That is why I have lodged my amendments in the group.

I want to deal with the exceptions in the Equality Act 2010, which Jackie Baillie addressed, because they are fundamentally important to the bill. Amendment 129 would require the Scottish Government to

“consult each Scottish public authority about the implications of this Act for the development or modification of the authority’s policy on the operation of the exceptions”.

Just a year ago, in December 2021, the House of Commons Women and Equalities Committee report on the Gender Recognition Act 2004 stated:

“Concerns raised ... about the interplay between the GRA and Equality Act fall into three broad categories:

• A lack of confidence or understanding amongst service providers about how to apply exceptions;

• The need for better guidance to assist service providers with exceptions; and

• How a system of self-declaration might affect the provision of single-sex services”.

A year on from that, I do not think that those questions have been answered.

Fundamentally—this is the most important point that I want to make to the cabinet secretary—if service providers do not feel that they have confidence to use the law, what is the point of the law? The cabinet secretary must provide those organisations with that confidence or she cannot continue to rely on the argument that organisations should just make use of that exception.

I will give some examples of that point. The cabinet secretary is aware that I have been trying for ages to get a copy of the letter that Pam Duncan-Glancy referred to earlier, just so that I could see what was in it. Previously, what I said on the record about that was based on a report about it in The Times, but I have now read the letter for myself and I concede that it is quite different. However, what concerns me about Kevin Stewart’s letter—this illustrates my point—is that he wrote to health boards in October of this year, noting that he had been

“asked questions about the processes and policies Scottish hospitals use when managing inpatient admissions of transgender patients to NHS inpatient services”,

and that

“some Boards … have clarified that there is currently no specific protocol for management of this patient group.”

However, there is nothing in the letter about the law or the exemptions. What is the point in writing to health boards without telling them what they are allowed to do but saying that the onus is on them, when it should be on the Government? Surely the Government must at least accept that point. To be honest, I think that that is atrocious. The Government must live up to its responsibilities.

That is why I ask the Government to support my amendment and to talk to the organisations on the ground that have to implement public policy. The aspect of the bill that is most lacking relates to how the exemptions can be applied in the public policy sphere.

In response to Ash Regan’s intervention, the cabinet secretary said that exemptions can be used, which is, of course, correct. Will the cabinet secretary offer her opinion on why rape crisis centres, for example, that have tried to use the exclusions have experienced a great deal of resistance? Many organisations that have tried to use the exemptions, which are lawful, do not seem to be able to use them. Does that give the cabinet secretary cause for concern? Does all of this boil down to, “Well, in any case, you can exclude anyone but, incidentally, you can’t ask someone’s trans status, as it might be a bit difficult”?

Surely the cabinet secretary must know that loads of organisations are at the end of their tether, because they are trying to use the exemptions but they are not able to.

I will speak to amendments 117, 128 and 129, in my name, and I support the excellent amendments in the name of Jackie Baillie and other amendments in the group. I will try not to repeat what has been said—there is quite a bit of overlap in the group, which is probably one of the most important in relation to the bill.

I will begin by tackling the Scottish Government’s stated position that all that it is doing is reforming the process part of the Gender Recognition Act 2004. I do not believe that to be the case. As a result of having taken that position, the Scottish Government has consistently argued that there is no requirement to issue guidance or to clarify the effect of holding a gender recognition certificate under the proposed reforms to the Equality Act 2010.

Up to this point, the Scottish Government has insisted—members have heard this again today—that it is the responsibility of the Equality and Human Rights Commission to issue guidance on the effect of having a GRC. The problem with that is, as Claire Baker has said, that the EHRC has repeated its view that the Government has amended the bill to such an extent that clarity is needed on the operation of the Equality Act 2010. In my view, that is based on the bill that we are looking at being quite different.

Just last week, the EHRC made the same point. It said:

“The law concerning matters of sex and gender can be complex, and clarity is essential for the public bodies, employers, service providers and people across the country who rely on it.”

Reem Alsalem, who gave evidence to the Equality, Human Rights and Civil Justice Committee, made the same point. In relation to prisons, she told the cabinet secretary that the guidance is not good enough. What more convincing does the Government need, to have got to this stage and argued a position, but has now conceded that position and will talk—

Will the cabinet secretary take an intervention?

To be fair, I think that what the Parliament has been trying to do in the past day or so is debate safeguards, some of which we have achieved; so, yes, I agree with Johann Lamont. However, I was not really talking about safeguards per se.

This is a really important point—for me, certainly. My contention is that the bill does not simply reform one part of the GRA; it changes the whole nature of it. That is why we, as legislators, have to be absolutely clear, when we pass the bill tonight—or tomorrow, or whenever it will be—how it interacts with the Equality Act 2010.

Just give me a minute to get my train of thought back, please.

I believe that the Scottish Government has instead stripped out those elements, as I have said, as well as removing all the requirements from the process of acquiring a gender, as I spoke about in previous groups of amendments. That means that clarity is required, and that is why I believe that the Scottish Government must publish detailed guidance on the effect of having a GRC.

I want to speak more about what legal challenges there might be to Lady Haldane’s judgment and what that might mean. Given what I have just described, which is a vastly different bill—because it is not just a tinkering with the 2004 act—the Government has an obligation now to indicate what the effect of having a gender recognition certificate is.

I wonder whether the cabinet secretary will address my central point. Why do ministers not write to health boards to tell them what the guidance is? Why are ministers putting the onus on health boards to tell them? The problem is that health boards do not have the confidence to use the exemptions.

I will give another example of that. In NHS Ayrshire and Arran’s policy on trans users, there appears to be no mention of the exemptions framework. Can members see the trend here? No one in the public sector is mentioning the exemptions, and I do not understand why the Government is not more concerned about that. It is in the interests of all users and patients, including trans patients, and of everyone who believes in the policy and the bill to sort this out.

The example that I have given is the worst one, because it shows a total misreading of the law—it is not even the law. On multiple occasions, NHS Ayrshire and Arran’s policy refers to the fact that certain scenarios or practices

“may be in breach of legislation”,

but it does not name the legislation. At appendix 4, the policy states that placing a trans patient in a single-occupancy room to “avoid potential difficulties” is “discriminatory”. It is discriminatory only if staff have not justified it by being proportionate and legitimate. The policy says that the situation is comparable with placing a

“black, disabled, elderly or lesbian, gay or bi-sexual patient”

in a single-occupancy room. The policy further states that female patients who raise concerns about trans women being put on female-only hospital wards are comparable with racists, and they have been told that they

“may have to be removed”.

I am not being too hard on health boards, because they probably think that they are doing the right thing, but this is a public policy disaster, and I am annoyed that we have reached stage 3 before the Government has acknowledged any of this.

Like any good legislator, I have come here today to press the cabinet secretary for some answers. I sat through the whole of the stage 2 proceedings. My contribution to the debate is genuine. Members will find out what I will do when the time comes. At the moment, I am trying to test the Government on these important policy issues, because I want to improve the situation.

Jackie Baillie has covered the issue of single-sex services, but I reiterate that some services such as rape crisis centres have clearly found the situation very difficult in some instances. That is not good enough. It is not good enough that rape crisis centres should feel the threat of being called transphobic for using the exemptions when they can and clearly showing that their use is proportionate and legitimate—the Government must stand up for the services that choose to do so.

Finally, I want to briefly talk about amendment 128, which is on sex and gender data. We need better data. The UN independent expert on protection against violence and discrimination based on sexual orientation and gender identity—forgive me, I cannot remember his name—made the point well that we need more data on the trans population in Scotland to ensure that we have better policies for trans people.

However, we do need to collect data on the basis of biological sex. Reem Alsalem has said that she is

“afraid that the collection of sex data has recently been deprioritised”

and that it has led

“to the conflation of data results.”—[Equalities, Human Rights and Civil Justice Committee, 19 December 2022; c 21.]

We have seen the introduction of recording policies that conflate sex and gender identity in a single category. Although I recognise that the chief statistician published a report on data collection in respect of sex, gender identity and trans status in September 2021, he proposed voluntary questions around the capture of sex and gender data, and it is clear that many organisations are not tracking such information in relation to service users. Statistical evidence has been compromised by a lack of separate data on sex and gender identity, which means that information cannot be easily tracked. Police and other services need to collect data on sex at birth and self-declared gender identity separately in order for services to undertake rigorous risk and impact assessments when considering “proportionate and legitimate” concerns.

I apologise that this is a long contribution, Presiding Officer—one of the reasons why I wanted this amendment moved into another grouping is so that I could address it.

I am clear in my mind that, if we want the legislation to work, it has to be quite different—you have to resolve these issues without going to the heart of competence. You have to give confidence to public service providers. Otherwise—if you cannot tell your public sector providers what it actually means—the phrase

“proportionate means of achieving a legitimate aim”

is absolutely meaningless in law, as Jackie Baillie has said.