Chamber and committees

I have a final question. There are many areas of the budget that you could look to and find savings in. The area that always comes up is court time for police officers, who have to give up their rest days and all the rest of it. To what extent is that being resolved by the ingenuity of technology? How far down the road are we with that? Can technology assist with that?

I am not asking you to disclose the details of the discussions but, given what you have said, I would like some reassurance that you want to protect police numbers and the police model. The only way in which that can be done is by having some kind of plan that is not the current one. Can you reassure us that there is a plan that the Cabinet supports? How far can you go?

I thank Pam Gosal for nominating this important topic for a members’ business debate. I apologise to her and to other speakers; I did not realise that we had gone on so late tonight, so I cannot remain for the whole debate, but I really wanted to speak in it.

On 25 November, we observe the international day for the elimination of violence against women. On this day, we are reminded of all the women and girls who are victims of male violence, and we are reminded of the urgent need to eradicate all forms of violence against women and girls.

On Friday, Scottish Labour will launch our consultation on changing the future for women and girls, simply because we want to be part of the conversation about how we can change things for all time. Like other members, I applaud the bravery of the Iranian women who are marching in the streets. However, I add that there are many other women in other countries who are also being brave—for example, by speaking out under the regimes in Saudi Arabia and Afghanistan, and in many other countries around the world where girls are not given an education and where they are treated appallingly as an extension of widespread global discrimination against women and girls.

Gender-based violence is one of the most systemic and socially tolerated human rights violations of our time. Global estimates that the World Health Organization published in 2021 indicate that one in three women worldwide will experience physical and/or sexual violence in their lifetime. At least one in ?ve women in Scotland will experience domestic abuse, and an average of six rapes are reported every day. Shockingly—I am sure that we have debated this before—only 7 per cent of reported rapes and attempted rapes made it to court in Scotland in 2020-21. Figures that the Scottish Government released yesterday reveal that the number of reported sexual crimes was 6 per cent higher than it was in the year ending September 2021. It is worrying that that trend is, unfortunately, rising.

The question that we must answer is: how are we going to tackle the root cause of that? The root cause will be the same in Scotland as it is in the rest of the world. I know that the Minister for Equalities and Older People, and probably all of us, will share this view, but we need to continue to return to that question. There is an epidemic of misogyny and inequality across our society. Research has shown that socially constructed gender norms that socialise boys and men to value hierarchy, aggression, power, respect and emotional suppression might be a primary root cause of violence against women.

In such debates, I always feel, even when I am literally in my last minute, that I have not really said anything at all, but l must conclude. I could go through more shocking statistics. For me, however, the most important thing is that the Parliament must continue to do the work to identify the root causes. We know that boys of a certain age—we have seen this time and again—mimic the behaviour of other males. In a sense, we have to break that cycle and the cycle of young girls being harassed, arguably, more now than they were in my generation. Figures show that they are harassed while going to school, and the advent of social media has meant that many of them are under pressure to send nude photographs of themselves as a normalised part of growing up. That should not be normal, and it is not acceptable behaviour in schools.

I know that Christina McKelvie and Shona Robison will talk about the work of the equally safe programme. I support that programme, and I would like it to be extended to every school. I make one request, if I may, as I would like to see this in action: we must work together to eradicate violence against women and girls.

Like Daniel Johnson, I support reform of the Gender Recognition Act 2004. It seems a century ago, but I chaired the committee that considered that legislation at the time. It was a much-needed piece of legislation to protect the rights of trans people.

My amendment 101 would require the Scottish ministers to publish guidance on the effect of having a gender recognition certificate. It seeks to clarify both that effect and the impact that obtaining a GRC will have on rights under the Equality Act 2010.

In his remarks, Daniel Johnson went quite a long way towards making the central argument that I am going to make, which is that, if the Government does not provide clear guidance, public organisations will be unclear about how they may use the 2010 act to, for example, protect single-sex spaces. As far as I am concerned, it would be unacceptable to leave organisations in the dark in that regard.

Although a GRC that was gained under the 2004 act will have the same interaction with the Equality Act 2010, my contention is that the guidance on exclusions could never be made clear enough. The bill seeks to make significant changes to the process and, with a larger number of individuals being likely to apply for a GRC after its provisions come into effect, it is now pressing to ensure that the guidance is clarified.

A note from MBM says:

“It is ... worth emphasising ... that a GRC is not a sex-invisibility cloak. In court recently, Counsel for the Scottish Government appeared to argue that once someone had changed their birth certificate using a GRC, it would be more or less impossible for organisations to distinguish between those born female and holders of a female GRC.”

I asked the cabinet secretary about that at stage 1, because there appears to be a contradiction between what the Government has said to Parliament—we heard that in an exchange between Karen Adam and the cabinet secretary—and what it has argued in court. We have heard that the fact that someone has a GRC will not be a basis on which an exclusion may be made, yet the Government has argued in court that there will be legal significance to having a GRC. We need clarity on what it means by that.

On the 2010 act’s functions with regard to the exclusion of men from single-sex spaces, the Equality and Human Rights Commission tells us:

“The Equality Act allows for the provision of separate or single sex services in certain circumstances under ‘exceptions’ relating to sex.”

If that is the case, it is incumbent on the Government to set out how that can be achieved. Again, I asked the cabinet secretary to address that, but I do not think that it was addressed. I hope that the Government will address it.

The Equality and Human Rights Commission says:

“By broadening the group of trans people who will be able to obtain legal gender recognition, the proposals have significant implications for the operation of the Equality Act in Scotland.”

The Government cannot ignore the fact that the body that is responsible for telling us how the Equality Act 2010 operates is saying that that could be a problem and that it needs to be resolved.

The EHRC continues:

“Whilst the Equality Act makes provision to treat people with the protected characteristic of gender reassignment differently from others sharing the same legal sex in certain circumstances and where justified (for example, in relation to occupational requirements, separate- and single-sex services, sport and communal accommodation), such provision does not apply in every context contemplated by the Act.”

Although sex discrimination cases are a reserved matter, I believe that, given the significant changes to Scottish GRCs, employers need to be aware of the interaction between sex discrimination and Scottish GRCs. For example, women who make equal pay claims will need to know whether they can compare themselves to someone with a GRC or not. I make no comment on that, but we need the Government to make such things clear.

Claire Baker mentioned while we were considering a previous group of amendments that, under the 2010 act, an approach must be a

“a proportionate means of achieving a legitimate aim.”

That will depend on the nature of the service and it may be linked to the reason why the single-sex service is needed. We are clear that the 2010 act allows exclusions, but we are unclear about what those exclusions really amount to.

The EHRC guidance gives the following example:

“A group counselling session is provided for female victims of sexual assault. The organisers do not allow trans women to attend as they judge that the clients who attend the group session are likely to be traumatised by the presence of a person who is biologically male.”

We need the Government to say whether it believes that such exclusions would be lawful or unlawful and whether its guidance will support them or not.

The same holds for domestic abuse refuges. Some have sought to make exclusions, but they have found themselves at the wrong end of, for example, social media. If exclusions exist, organisations must be allowed to use them, and I would argue that, if the Government is seeking to make significant changes to the 2004 act, it is incumbent on it to say in guidance what the effect of having a Scottish GRC is.

I could give other examples. I note that, in its guidance in 2015 on accessing sports facilities and services by transgender people, Glasgow Life, in a section entitled “Single Sex leisure Provision”, said:

“The person is entitled to participate in single sex sessions and cannot be excluded from participation of their chosen gender.”

That is legally incorrect. The authority in my own city is saying that you cannot exclude people, but that is plainly wrong, and the Government has to start challenging these things if it believes that we can use the Equality Act 2010 as intended.

I also put on record my concern about a letter that Kevin Stewart, the Minister for Mental Wellbeing and Social Care, has written to all health boards, further confusing Government policy on this matter. I have asked for that letter, but I have had to base what I am about to say on reports that I have read, so I ask the cabinet secretary for some clarity. The minister is reported as saying that health boards who place trans women in a private room as a way of dealing with single-sex wards may be discriminatory. That is plainly wrong in law if the Government believes that it can prove that these exclusions exist. Scottish Government ministers are not helping themselves or helping people understand how the exclusions can be made.

In summary, the Government has to set out in a more explicit way the rights that women have to set boundaries on single-sex services and the rights that organisations have to use the exclusions. If the cabinet secretary’s answer today is that this is a matter for the Equality and Human Rights Commission, I, again, have to cite the fact that it, too, is concerned about this. It is down to the Scottish Government to say what the effect of having a GRC is.

On my other amendment—amendment 110—I think that we are all at one in this Parliament, certainly from the debates that we have had, in saying that violence against women and girls is a significant problem in Scotland and, indeed, across the world. That data must continue to be collected, and I believe that it should be collected on the basis of biological sex. I would like to hear what definition the Government intends to use in that respect, because, as I have said, I do not think that that has been clear from what it has said in court. Indeed, it has not said anything so far in this process that makes things any clearer. I would have thought that there would have been some agreement to continue to collect that data without interfering with the bill’s main principle of giving trans people dignity in their lives and of significantly improving the 2004 act to ensure that we make changes that make sense.

I will definitely be moving amendment 101, but I will listen to what the cabinet secretary has to say on amendment 110.

I have a simple point to make. Cabinet secretary, you said that the bill does not modify the Equality Act 2010 or the effects of obtaining a GRC. That is fine, but it is confusing that the Government is arguing that legal sex—as opposed to biological sex—includes those who have a GRC. It appears that the Government’s definition of sex includes people who have a GRC. That would not be my definition, and many people would disagree with that: it is disputed.

You state that the bill does not modify the effects of the 2010 act, but it does change those effects if your definition of sex is not one of biological sex. I think that you need to clear that up. What is the Government’s definition of “sex” for the purposes of the 2010 act?

It is really important that the Government clarifies this point. We have heard a lot of talk about fraudulently making a declaration, but at no time has the Government set out what would have to be shown in court. Can you give us an example of what would need to be shown, given that the process is already quite a simple one, in that a person just applies and then waits three months? The process can also be reversed.

I am interested in the legality of the position. If something is in the bill—whether people think that it should be or not—it is a matter of law. The Government needs to be clear what would need to be shown in court to prove that the application was fraudulent in the first place.

For the avoidance of any doubt, I refer to a specific bit of the EHRC briefing—which I do not know whether the cabinet secretary has seen—which Foysol Choudhury mentioned. It says:

“We have highlighted several areas where the effect of the Bill’s provisions on the operation of the protections from sex discrimination in the Equality Act is unclear and have urged further consideration before legislative change is made.”

The briefing refers to my amendment 101 and all the amendments in the group, and recommends that “such amendments should be considered.” Cabinet secretary, you say that it is a matter for the EHRC, and that you will not support amendment 101, but it is important to get on the record that even the EHRC has said that the amendments should be “considered”, because it would welcome that clarity. It seems that the Scottish Government stands alone in saying that it would not accept further clarification.

Sarah Boyack’s amendment raises a number of important issues. I want to address the question of what everyone is calling bad actors. I have dealt with a lot of legislation, as have other members, so I know that it is perfectly normal in legislation to close loopholes, even if you do not think that there actually is a loophole. Although the Government has moved on the question of sex offenders, which I welcome, I do not understand why it is so resistant to closing the loophole.

There does not seem to be anything to prevent someone who wants to misuse the legislation from doing so. We are not talking about a trans person here; we are talking about a man, for example, who could easily acquire a GRC—let us face it, it will be a simple process. The Government does not seem to think that that is a loophole or that further action is needed to prevent that from happening. I plead with the cabinet secretary to think about the issue for stage 3. As legislators, we are here to look for loopholes in proposed legislation and say, “I’m not sure about this.” I might be wrong, but it looks to me that there is a loophole here. I do not understand why the Government is so resistant to that, because it does not undermine the principles of the bill or what the Government is trying to achieve.

I just point out the reality of life, which is that men have abused their positions in professions, including in the NHS, in relation to women. Why would they not use this as an opportunity, in another way? Therefore, why can we not think about how we could close that loophole, for the purposes of complete closure?

I was going to mention this later, cabinet secretary, but I will talk about it now, as you have mentioned it. You will be aware of the briefing that MSPs have received from the Equality and Human Rights Commission, which believes that, because of the significant differences between this bill and the 2004 act, there will be significant issues with regard to the interaction between this bill and the Equality Act 2010.

For completeness, ministers must address what the EHRC has said about that. The commission agrees with you on some points, but as the body responsible for guidance on the 2010 act, it thinks that there are significant issues. It would be wrong of the Scottish Government not to address that before we make decisions.

Thank you—it is because you touched on my amendment.

I had hoped that you would address the significant question around exclusion. You said that the 2004 act sits alongside the 2010 act. Forgetting for a moment your definition of sex versus my definition, I am interested in how the 2010 act is used for exclusions.

As I said, the Government has a minister who is telling health boards that they cannot exclude people and that if they do so, it might be discriminatory. That is completely unhelpful for the purposes of this debate, and I would like an explanation for that from the Government somewhere along the line.

I go back to the Glasgow Life example. I think that some bodies are either confused or potentially not implementing the section of the 2010 act that allows them to make a “proportionate” decision for a “legitimate” aim. In some cases, they are actually saying that they will not make any exclusions. That is not what the 2010 act says.

Given those examples, surely the Government has to step in and say, “Now hold on a minute—you are allowed to make exclusions under the 2010 act.” Do you see my point?