Chamber and committees

Will the cabinet secretary take an intervention?

I thank the cabinet secretary for taking the intervention. I think that it is a very important point, which we need to be allowed to debate. As I understand it, the Government's position, which I happen not to agree with, is that exemptions are still operable. What assessment has the Government done on the chilling effect on what could often be quite small single-sex service providers?

In Norway, a female artist is facing criminal charges for stating that men cannot be lesbians. I fully accept that some people hold beliefs that I do not agree with. I, no doubt, hold beliefs that others would not agree with, but I would not compel others to agree with my beliefs. We should all be free to express ourselves and, indeed, even to cause offence. That is important. The wider debate on the issues has not benefited from the attempt to shut down questioning voices and voices that suggest things that other people may not believe in.

On the point that Mr Whittle raised, it is very important that women feel that they have the right to the words that describe them, their lives, and their experiences.

I recently happened to listen to a recording of Mary Richardson. She was describing her time as a suffragette and how she was once on the train having left the scene of an act of civil disobedience. She sat in the train carriage and listened to man after man after man describe all the violent ways that they would like to kill a suffragette if they ever saw one, obviously not realising that there was one sitting among them in the carriage. I must say that I was quite struck by the parallels that we are facing today in the form of threats to women who speak out, including their being threatened with rape and murder. Even 100 years later, men still feel entitled to threaten and kill women simply for saying something that they do not agree with.

I want to ensure that nobody is compelled to speak about a holder of a GRC in a particular way simply because they hold a GRC. The judgment in Maya Forstater v Centre for Global Development made clear that protection of a belief means nothing without the ability to express that belief. We need to be clear that a process of state certification does not in itself introduce new constraints on article 10 rights, except in so far as the bill explicitly introduces those constraints.

I will also talk about the effect of section 22—which has already been raised by Ms Gosal—on what people may lawfully say. I also attempted to lodge amendments on the subject—as, I know, Ms Baker also tried to do at earlier stages. Those amendments would have allowed us to discuss whether the provisions of that section remain appropriate for what is now a much larger and more varied group of GRC holders than was envisaged by the legislation from 2004.

The Employment Lawyers Association has previously queried whether section 22 of the 2004 act remains the best approach to privacy protection due to its potential to have a chilling effect on lawful information sharing. The association asks why the protections that are properly afforded to everyone with a protected characteristic of gender reassignment, whether or not they have a GRC under the Equality Act 2010, need to be enhanced in this way for GRC holders only. I take this opportunity to put on the record my understanding that the offences in section 22 of the 2004 act apply only to a person who has obtained information about a GRC holder in an official capacity, and have no relevance outside that context and pose no other additional legal constraints relating to GRC holders or individuals who are going about their day-to-day lives.

I would welcome an undertaking from the cabinet secretary that the Scottish Government will look very carefully at the amendments that were rejected as inadmissible, in terms of their having suggested additions to the exceptions in section 22 of the 2004 act. It would be reassuring for the chamber to hear the minister confirm that the Government is open to using its power to amend section 22 by order before the bill is brought fully into force, where that can be properly justified. I am aware that in 2019 a commitment that remains to be fulfilled was made to look further at section 22. Now is, of course, the time to tie up that loose end.

Will the cabinet secretary take an intervention?

For the chamber’s information, I note that I do not intend to move amendment 112, but I will move amendment 113.

One of the roles of a Government is to protect its people. As we know, the current GRA regime was put in place to ensure that there was legal recognition for trans people, and they are protected under the Equality Act 2010’s provision on gender reassignment. The existing regime is fully compliant with human rights law. A recent High Court judicial review in Northern Ireland ruled that the GRA regime strikes a fair balance between the needs of the applicant and those of the community.

In my view, the Gender Recognition Reform (Scotland) Bill does not strike that balance and does not protect the rights of everyone. Instead, it introduces a hierarchy of rights in which women’s rights are demoted. I say that not to be provocative or unnecessarily controversial, but because that is the only conclusion that can be drawn from a review of the interactions between the existing legislation and the proposed legislation. That has been demonstrated by the lengthy debate that we have had already about that point.

In my view, Lady Haldane’s ruling in the Court of Session last week has now put it beyond doubt that self-identification grants new rights, because it would grant a GRC to almost anyone who wants one. That is not just an administrative change or a change in process that has no real-world effect.

Currently, around 600 people in Scotland hold a GRC, which is quite a small number. The Government expects that number to increase tenfold to 6,000. That means that somewhere in the region of 5,000 or more people—although we are not entirely sure about the number—who are not currently eligible for a GRC will be granted the right to apply for one and the rights that are conferred by it. That is the most important point. Those people may well be trans; however, my strong contention is that not all of them will be.

I accept that point. Probably, there will be a small number of people who have chosen not to apply for a GRC for whatever reason. However, the general contention is fair: the bill would open the process to a vast number of people who would not currently be eligible for a GRC under the normal scheme, which has a number of safeguards.

I take issue with the point that Maggie Chapman has made that all trans people think that the current process is intrusive or degrading in some way. Although I am sure that there are some who feel like that, that is not how some trans people have described it to me. A GRC holder has said to me that she was completely happy with the process and felt that the length of time that it took was entirely appropriate, considering the profundity of the change.

If we are saying that we think that some of the people who are applying for a GRC might not be trans, we are not going to be able to tell whether they are or not. We have already had a debate about how we would be able to tell whether there were fraudulent applications, which would create a situation in which members of a dominant group in society can self-identify into an oppressed group. That is absolutely unprecedented. My amendments 112 and 113 will not resolve that problem and I do not think that they will put the situation beyond legal doubt. I tried to lodge a number of other amendments but was advised by Parliament that amendments that would alter the effect of a GRC were inadmissible, which we have already debated.

However, because the bill has expanded the group of people who could access a GRC—we are all admitting that the process could be open to abuse—in not allowing the Parliament to make changes to the effect of those certificates, we are now being asked to legislate in a way that cannot possibly lead to good law.

Therefore, it is my strong belief that many of the amendments that we are discussing today will not materially alter the issues that we are all facing. I also contend, despite the information that has been presented at committee, that the state’s obligation to protect vulnerable rights holders was not given enough consideration. That contention has been backed up by Reem Alsalem, the UN special rapporteur on violence against women and girls, its causes and consequences.

It is claimed that the impact on women and girls was assessed and that there was no impact. I strongly disagree with that. I have searched, and I cannot find the analysis that addresses and evaluates the impact in the context of women and girls as vulnerable rights holders. That is consistent with other jurisdictions, where the data on the impact on women is not being collected. In Ireland, when the self-ID law was being reviewed, the impact on women was considered to be out of scope. If we do not collect the data, we will not be able to assess the impact. On that basis alone, I believe that we should not proceed.

There are many examples around the world, including in Scotland, of violent offenders and sex offenders in women’s prisons. There are examples of flashing and voyeurism in women’s single-sex spaces, and of women self-excluding from services in places where self-identification for women’s single-sex spaces has been introduced. I assert that, for those who are looking, the impact is there to see.

Women’s single-sex spaces are important. The issue is whether people are male and not whether they are trans. Male people as a group are a risk to women. I see that the Greens are sighing at that reference, but male people as a group are a risk to women—I think that we all accept that. The ability to exclude people of the opposite sex on the ground of sex will now be impossible if they hold a GRC. Inevitably, making use of the exemptions will be much more complicated and will be much more off-putting to organisations, many of which are quite small or are charities.

The bill might not spell it out, but I believe that we should not delude ourselves: it comprehensively undermines the single-sex exemptions. We are being conditioned to accept male-bodied people in women’s single-sex spaces. Why? Who does that benefit? I say to my fellow parliamentarians that it boils down to this question: do you think that women will be more or less safe as a result of the bill? If members have any concerns at all that the bill will make women and girls less safe, they cannot vote for it. [Interruption.]

The public expects us, as parliamentarians, to engage critically with the arguments. The public expects us to balance different viewpoints and rights, and it expects us to ask the hard questions and to understand what we are voting for. It is a huge responsibility and it cannot be delegated.

The people of Scotland are watching. We often say that we use legislation to “send a message”, and I believe that that is true; I believe that that is sometimes what we are doing. However, I am very sad to say that the message that is being sent out to women and girls in Scotland today is, “You don’t matter.”

I will vote as if women do matter, and I will vote against the bill. [Applause.]

Does the member agree that evidence suggests that the risk of getting caught committing an offence is a very effective deterrent?

I intend to set out my wider arguments on the bill in the debate on group 13, in which I have lodged some amendments of my own. My general position on the bill is that I will not be supporting it. However, I intend to support amendments that I feel will increase the safeguarding provision. In that vein, I am happy to support amendments 6 and 15.

I do not think that including children aged 16 is appropriate for what many people would consider to be a very profound change.

I take this opportunity to share with members in the chamber the view of a mother who wrote to me just a few days ago. She wanted me to read out her perspective to members today. She said:

“My 15 year old daughter is on the autistic spectrum and is struggling with anxiety and depression. Despite showing no signs of gender incongruence before the age of 12, she self-diagnosed as having gender dysphoria three years ago and currently identifies as male. I believe she has been influenced by social media and current societal norms. The teen years is a time of flux and how she feels now may change over time as she matures.

The school and the NHS have taken an affirmative approach despite my concerns as a parent. I don’t agree that the Government should be lowering the age that young people can self-ID to the age of 16 as socially transitioning is the first step along an often misguided path to medicalisation and surgery. I was persuaded and coerced that it was the right thing to do to call my daughter by the new name and pronouns when in fact this was bad advice and has led us down a very difficult path as a family. I believe a watchful waiting and holistic approach is best, looking at all the factors in a young person’s life.”

There are also a large and increasing number of detransitioner voices, which I feel have not been well represented in the process. Just a few weeks ago, Ruth Maguire hosted a detransitioners event in the Parliament, which was mentioned earlier. I agree with the other members who spoke about that event that the detransitioners’ stories were extremely powerful—heartbreaking, even—and that there was a real and strong sense that they had been very much let down by those who should, in fact, have been protecting them.

The question was put to those detransitioners: is self-ID at 16 a good change? It was an emphatic “No” from those two young people. Neither of them supported self-ID and, in their view, young people having a bit of paper with their new gender on it would only incentivise them to seek to change how they looked in order to match their new documents. In my view, the age should be 18 and no lower, and, in my opinion, we should exercise extreme caution in this area.

In the additional evidence session that the Equalities, Human Rights and Civil Justice Committee had last night, that was not the characterisation that was put forward by Reem Alsalem, who is of course the UN special rapporteur with a special mandate for violence against women. She said that the evidence is there. She said that the evidence has not been collated, analysed and put together in one place, but the evidence certainly is there. Is the Government at all concerned that impact assessments of the effects of the proposed legislation have not taken place and that we are increasingly collecting data on the basis of gender identity and not sex?